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EXHIBIT 10.44
STOCK PURCHASE AGREEMENT
by and between
TCW/EMCO Holding LLC
And
PM Holdings, Inc.
dated as of
November 12, 1999
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS ............................... 2
ARTICLE II
PURCHASE AND SALE OF SHARES; RELATED TRANSACTIONS
2.1 PURCHASE AND SALE .................................................... 11
2.2 THE CLOSING .......................................................... 11
2.3 DELIVERIES BY PM HOLDINGS AND THE COMPANY ............................ 11
2.4 DELIVERIES BY TCW/EMCO ............................................... 13
2.5 CLOSING EVENTS ....................................................... 14
2.6 REDUCTION IN PURCHASE PRICE .......................................... 14
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PM HOLDINGS
3.1 ORGANIZATION AND CORPORATE POWER ..................................... 15
3.2 SUBSIDIARIES AND AFFILIATES .......................................... 15
3.3 AUTHORIZATION ........................................................ 16
3.4 CAPITALIZATION ....................................................... 17
3.5 OWNERSHIP, NO LIENS .................................................. 17
3.6 CONSENTS AND APPROVALS; NO VIOLATIONS ................................ 18
3.7 FINANCIAL STATEMENTS ................................................. 19
3.8 ABSENCE OF UNDISCLOSED LIABILITIES ................................... 19
3.9 ABSENCE OF CERTAIN CHANGES ........................................... 19
3.10 LITIGATION ........................................................... 20
3.11 COMPLIANCE WITH LAW .................................................. 20
3.12 ENVIRONMENTAL ........................................................ 21
3.13 LABOR RELATIONS ...................................................... 22
3.14 EMPLOYEE BENEFITS .................................................... 23
3.15 TAXES ................................................................ 23
3.16 PROPERTY; ASSETS ..................................................... 25
3.17 MATERIAL CONTRACTS; APPROVALS ........................................ 26
3.18 INSURANCE ............................................................ 27
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3.19 Intellectual Property ............................................... 28
3.20 Brokers; Finders and Fees ........................................... 29
3.21 Transactions with Certain Persons ................................... 29
3.22 Disclosure .......................................................... 29
3.23 Investment Representation ........................................... 29
3.24 Operations and Assets of the EMCO Group ............................. 29
3.25 Regulatory Matters .................................................. 30
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF TCW/EMCO HOLDING
4.1 Organization ........................................................ 30
4.2 Authorization ....................................................... 30
4.3 Consents and Approvals: No Violations ............................... 31
4.4 Investment Representation ........................................... 32
4.5 Brokers; Finders and Fees ........................................... 32
4.6 Matters Relating to TCW/EMCO Holding ................................ 32
4.7 Capital Call ........................................................ 32
4.8 Litigation .......................................................... 33
ARTICLE V
COVENANTS OF THE PARTIES
5.1 Conduct of Business of the Company .................................. 33
5.2 Access to Information ............................................... 35
5.3 Consents; Reasonable Efforts ........................................ 35
5.4 Notification of Certain Matters ..................................... 36
5.5 Publicity ........................................................... 38
5.6 Contract with Customers and Suppliers ............................... 38
ARTICLE VI
CONDITIONS TO CLOSING
6.1 TCW/EMCO Holding's Conditions Precedent ............................. 38
6.2 PM Holdings' Conditions Precedent ................................... 40
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ARTICLE VII
TERMINATION AND ABANDONMENT
7.1 Termination ......................................................... 41
7.2 Procedure for and Effect of Termination ............................. 42
ARTICLE VIII
SURVIVAL AND INDEMNIFICATION
8.1 Survival Periods .................................................... 43
8.2 PM Holdings' Agreement to Indemnify ................................. 43
8.3 TCW/EMCO Holding's Agreement to Indemnify ........................... 45
8.4 Third Party Indemnification ......................................... 46
8.5 Other Indemnification Matters ....................................... 47
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 Expenses ............................................................ 48
9.2 Amendment and Modification .......................................... 48
9.3 Entire Agreement Assignment ......................................... 48
9.4 Severability ........................................................ 48
9.5 Notices ............................................................. 48
9.6 Dispute Resolution .................................................. 50
9.7 Governing Law; Waiver of Jury Trial ................................. 50
9.8 Descriptive Headings ................................................ 51
9.9 Counterparts ........................................................ 51
9.10 No Third Party Beneficiaries ........................................ 51
9.11 No Waivers .......................................................... 52
9.12 Certain Limitations ................................................. 52
9.13 Further Action ...................................................... 52
9.14 Interpretation ...................................................... 52
EXHIBITS
Exhibit A Shareholders Agreement
Exhibit B Revised By-laws of the Company
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STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is made as of
November 12, 1999, between PM Holdings, Inc., a Connecticut corporation ("PM
Holdings"), and TCW/EMCO Holding LLC, a Delaware limited liability company
("TCW/EMCO Holding" and, together with PM Holdings, the "Parties").
WHEREAS, PM Holdings is a wholly-owned Subsidiary of Phoenix Home
Life Mutual Insurance Company, a mutual insurance company organized under the
laws of the State of New York ("Phoenix"), and immediately prior to the Closing
(as defined below) shall own all of the issued and outstanding capital stock of
Emprendimiento Compartido, S.A., an Argentine sociedad anonima (the "Company");
WHEREAS, the Company operates through Subsidiaries in the
businesses of administering and managing pension funds, retirement insurance
and, life insurance in Argentina (collectively, the "Business"), and has issued
and outstanding capital stock consisting of 23,060,000 shares of nominative
nonendorsable Class A common stock, par value $1 per share, with one vote per
share (the "Shares");
WHEREAS, PM Holdings has caused the Company to convert 9,135,000
shares of nominative nonendorsable Class B common stock, par value $1 per share,
with one vote per share, having been all the shares of such class, into an equal
number of Shares (the "Conversion"); it is intended that, for U.S. Federal
income tax purposes, the recapitalization of the Company, as a result of the
Conversion, qualify as a tax-free exchange pursuant to either Section 1036 or
Section 368(a)(1)(E) of the Internal Revenue Code of 1986;
WHEREAS, TCW/Latin America Private Equity Partners, L.P. (the
"TCW/LAP Fund") is the sole member of TCW/EMCO Holding, owning all of the issued
and outstanding Equity Interests therein;
WHEREAS, pursuant to the terms and conditions of this Agreement,
PM Holdings desires to sell 11,530,000 Shares and TCW/EMCO Holding desires to
purchase such 11,530,000 Shares from PM Holdings, such purchased Shares
representing 50% of the issued and outstanding Shares at the Closing (such
purchased Shares are hereinafter referred to as the "TCW/EMCO Shares", and the
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11,530,000 Shares being retained by PM Holdings are hereafter referred to as the
"PM Holdings Shares");
WHEREAS, the Parties have agreed to enter into a Shareholders
Agreement (as amended from time to time, the "Shareholders Agreement"), to
reflect, among other things, their understandings as to the management and
operation of the Company and shareholders' rights of each of the Parties
following the Closing; and
WHEREAS, the Company has agreed to adopt by-laws substantially in
the form of Exhibit B (the "By-laws") to reflect the Conversion and the other
understandings of PM Holdings, TCW/EMCO Holding and the Company as to the
management and operation of the Company;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and in the Ancillary Agreements (as defined below) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
"Acquisition Proposal" shall have the meaning ascribed to it in
Section 5.3.
"Affiliate" shall mean, when used in reference to a specified
Person, any other Person that directly or indirectly controls or is controlled
by or is under common control with the specified Person. As used in this
definition, "control" (including, with its correlative meanings, "controlled by"
and "under common control with") shall mean possession, directly or indirectly,
of power to direct or cause the direction of management or policies (whether
through ownership of securities or partnership or other ownership interests, by
contract or otherwise).
"Agreement" shall have the meaning ascribed to it in the recitals
hereto.
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"Ancillary Agreements" shall mean the Shareholders Agreement, the
Notes, the Assignment Agreement, the Investment Commitment, the Pledge
Agreement, the Phoenix/TCW Letter Agreement and the By-laws.
"Approvals" shall have the meaning ascribed to it in Section 3.6.
"Argentine GAAP" shall mean the generally accepted accounting
principles of Argentina in effect at the time a determination thereof is made.
"Argentine Regulators" shall mean the Superintendencia de Seguros,
the Superintendencia de Administradoras de Fondos de Jubilacion y Pension and
any and all governmental entities and quasi-governmental entities that regulate,
or have at any time in the five years prior to Closing regulated, the Business.
"Assignment Agreement" shall mean the Collateral Assignment of
Investment Commitment among TCW/EMCO Holding, the TCW/LAP Fund and PM Holdings,
dated the Closing Date, substantially in the form of Exhibit C or as otherwise
executed by the parties thereto on the Closing Date, as amended from time to
time.
"Audit" shall have the meaning ascribed to it in Section 3.15.
"Board" shall mean the Company's Board of Directors.
"Business" shall have the meaning ascribed to it in the recitals
hereto.
"By-laws" shall have the meaning ascribed to it in the recitals
hereto.
"Claim" shall have the meaning ascribed to it in Section 8.4.
"Closing" shall have the meaning ascribed to it in Section 2.2.
"Closing Date" shall have the meaning ascribed to it in Section
2.2.
"Company" shall have the meaning ascribed to it in the recitals
hereto.
"Company Intellectual Property" shall mean all Intellectual
Property that is currently owned by or used in the business of the EMCO Group.
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"Company Subsidiary" shall mean each Person that is a Subsidiary
of the Company.
"Computer Software" shall mean any and all (a) computer programs,
including any and all software implementation of algorithms, models and
methodologies, whether in source code or object code (other than
off-the-shelf-software or commercially available software having an acquisition
price of less than US$5,000); (b) databases and compilations, including any and
all data and collections of data, and (c) all documentation, including user
manuals and training materials, relating to any of the foregoing, in each case,
used by the Company or any Company Subsidiary, or in connection with, the
Business.
"Confidentiality Agreement" means that certain letter agreement
dated August 11, 1999 between TCW/Latin America Partners, L.L.C. and Phoenix.
"Conversion" shall have the meaning ascribed to it in the recitals
hereto.
"Copyrights" shall mean U.S. and foreign registered and
unregistered copyrights (including those in computer software and databases),
rights of publicity and all registrations and applications to register the same.
"Customer" shall mean any contributor to, or beneficiary under, a
pension or social security plan or any owner or beneficiary of an annuity or
insurance policy, including, without limitation, Persons required under
applicable Law to contribute a fraction of their earnings to the administration
of an Administradora de Fondos de Jubilacion y Pension, whether or not such
Person selects a particular Administradora de Fondos de Jubilacion y Pension.
"Disclosure Schedule" shall mean the disclosure schedule of even
date herewith prepared and signed by PM Holdings and delivered to TCW/EMCO
Holding simultaneously with the execution hereof, as amended from time to time
prior to the Closing to the extent permitted in Section 5.4.
"Dispute" shall have the meaning ascribed in Section 9.6.
"Dispute Notice" shall have the meaning ascribed to it in Section
9.6.
"$" or "US$" shall mean the currency of the United States.
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"EMCO Group" shall have the meaning ascribed to it in Section 3.2.
"Environmental Laws" shall have the meaning ascribed to it in
Section 3.12.
"Equity Interest" shall mean shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person.
"Financial Statements" shall have the meaning ascribed to it in
Section 3.7.
"First Quarter Financials" shall have the meaning ascribed to it
in Section 3.7.
"Governmental Entity" shall mean any federal, state, local or
supranational court, arbitral tribunal, administrative agency or commission or
other governmental or other regulatory authority or agency of the United States,
Argentina or any other country or countries, including, without limitation, the
Argentine Regulators.
"Hazardous Substances" shall have the meaning ascribed to it in
Section 3.12.
"Indebtedness" shall mean (i) all indebtedness for borrowed money
or for the deferred purchase price of property or services (other than current
trade liabilities incurred in the ordinary course of business and payable in
accordance with customary practices), including, without limitation, any amounts
owing to any Person with respect to the Company's purchase of its securities,
(ii) any other indebtedness that is evidenced by a note, bond, debenture or
similar instrument, (iii) all obligations under financing leases, (iv) all
obligations in respect of acceptances issued or created, (v) all liabilities
secured by any lien on any property and (vi) all guarantee obligations.
"Indemnified Party" shall have the meaning ascribed to it in
Section 8.4.
"Indemnifying Party" shall have the meaning ascribed to it in
Section 8.4.
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"Insurance Policies" shall have the meaning ascribed to it in
Section 3.18.
"Intellectual Property" shall mean all of the following:
Trademarks, Patents, Copyrights, Computer Software, databases, technology, trade
secrets and other confidential information, know-how, models and methodologies,
together with any licenses or right to use any of the foregoing.
"Investment Commitment" shall mean the Investment Commitment and
the Acknowledgment, dated the Closing Date, between TCW/EMCO Holding and the
members thereof, substantially in the form of Exhibit G or as otherwise executed
by the parties thereto on the Closing Date.
"Labor Agreements" shall have the meaning ascribed to it in
Section 3.13.
"Labor Laws" shall have the meaning ascribed to it in Section
3.13.
"Laws" shall have the meaning ascribed to it in Section 3.6.
"Leased Real Property" shall have the meaning ascribed to it in
Section 3.16.
"Liens" shall have the meaning ascribed to it in Section 3.5.
"Material Adverse Effect" shall mean as to any Person a material
adverse change in, or effect on, the business, assets, liabilities, properties,
financial condition, results of operations or prospects of such Person; provided
that for purposes of any member of the EMCO Group, "Material Adverse Effect"
shall be determined by reference to the Company and the Company's Subsidiaries,
taken as a whole.
"Material Contracts" shall have the meaning ascribed to it in
Section 3.17.
"Notes" shall mean Promissory Note No. 1 and Promissory Note
No. 2.
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"Owned Real Property" shall have the meaning ascribed to it in
Section 3.16.
"Parties" shall have the meaning ascribed to it in the recitals
hereto.
"Patents" shall mean issued U.S. and foreign patents and pending
patent applications, patent disclosures, and any and all divisions,
continuations, continuations-in-part, reissues, reexaminations, and extension
thereof, any counterparts claiming priority therefrom, utility models, patents
of importation/confirmation, certificates of invention and like statutory
rights.
"Permitted Liens" shall have the meaning ascribed to it in
Section 3.16.
"Person" shall mean an individual, partnership, corporation,
limited liability company, business trust, joint-stock company, trust,
unincorporated association, joint venture or other entity of whatever nature.
"Phoenix" shall have the meaning ascribed to it in the recitals
hereto.
"Phoenix Group" shall mean Phoenix and PM Holdings.
"Phoenix/TCW Letter Agreement" shall mean that certain letter
agreement dated the Closing Date between Phoenix and the TCW/LAP Fund
substantially in the form of Exhibit H or as otherwise executed by the parties
thereto on the Closing Date.
"Plans" shall have the meaning ascribed to it in Section 3.14.
"Pledge Agreement" shall mean the Pledge Agreement between
TCW/EMCO Holding and PM Holdings, dated the Closing Date, substantially in the
form of Exhibit D or as otherwise executed by the parties thereto on the Closing
Date, as amended from time to time.
"Pledged Shares" shall have the meaning ascribed to it in
Section 4.6.
"PM Holdings" shall have the meaning ascribed to it in the
recitals hereto.
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"PM Damages" shall have the meaning ascribed to it in Section
8.3.
"PM Indemnitees" shall have the meaning ascribed to it in
Section 8.3.
"Process Agent" shall have the meaning ascribed to it in Section
9.7.
"Promissory Note No. 1" shall mean the 8% Promissory Note and
▇▇▇▇▇▇ due December 31, 2001, in the initial principal amount of US$9,000,000,
substantially in the form of Exhibit E or as otherwise executed by the parties
thereto on the Closing Date, as amended from time to time.
"Promissory Note No. 2" shall mean the 8% Promissory Note and
▇▇▇▇▇▇ due December 31, 2004, in the initial principal amount of US$16,000,000,
substantially in the form of Exhibit F or as otherwise executed by the parties
thereto on the Closing Date, as amended from time to time.
"Purchase Price" shall have the meaning ascribed to it in
Section 2.1.
"Real Property" shall have the meaning ascribed to it in Section
3.16.
"Real Property Leases" shall have the meaning ascribed to it in
Section 3.16.
"Regulatory Matters" shall have the meaning ascribed to it in
Section 8.1.
"Related Person" shall have the meaning ascribed to it in
Section 3.21.
"Related Proceeding" shall have the meaning ascribed to it in
Section 9.7.
"Securities Act" shall mean the U.S. Securities Act of 1933, as
amended.
"Shareholders Agreement" shall have the meaning ascribed to it
in the recitals hereto.
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"Shares" shall have the meaning ascribed to it in the recitals
hereto.
"Specified Courts" shall have the meaning ascribed to it in
Section 9.7.
"Statutory Obligations" shall mean as to the Company and each of
the Company Subsidiaries, obligations or liabilities of the Business arising
from applicable Law or the regulation, control or supervision of the Argentine
Regulators, including, without limitation, social security savings, annuity
products, pension savings and life insurance products, in each case, whether
arising under contract with Argentine Regulators or applicable Law.
"Subsidiary" shall mean, with respect to any Person, any
corporation or other organization, whether incorporated or unincorporated, of
which (a) any securities or other interests having by their terms ordinary
voting power to elect a majority of the board of directors or others performing
similar functions with respect to such corporation or other organization is
directly or indirectly owned or controlled by such Person or by any one or more
of its Subsidiaries, or by such Person and one or more of its Subsidiaries or
(b) such Person or any other Subsidiary of such Person is a general partner
(excluding any such partnership where such Person or any Subsidiary of such
party does not have a majority of the voting interest in such partnership).
"Superintendents" shall mean the Superintendencia de Seguros and
the Superintendencia de Administradoras de Fondos de Jubilacion y Pension.
"Survival Period" shall have the meaning ascribed to it in
Section 8.1.
"Tax Authority" shall have the meaning ascribed to it in Section
3.15.
"Tax Returns" shall have the meaning ascribed to it in Section
3.15.
"Taxes" shall have the meaning ascribed to it in Section 3.15.
"TCW Damages" shall have the meaning ascribed to it in Section
8.2.
"TCW/LAP Fund" shall have the meaning ascribed to it in the
recitals hereto.
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"TCW/EMCO Holding" shall have the meaning ascribed to it in the
recitals hereto.
"TCW Indemnitees" shall have the meaning ascribed to it in
Section 8.2.
"TCW/EMCO Shares" shall have the meaning ascribed to it in the
recitals hereto.
"Termination Date" shall have the meaning ascribed to it in
Section 7.1.
"Trademarks" shall mean U.S. and foreign registered and
unregistered trademarks, trade dress, service marks, logos, slogans, designs,
trade names, corporate names, Internet domain names, and general intangibles of
like nature together with all goodwill, registrations and applications to
register the same.
"United States" or "U.S." shall mean the United States of
America.
"Year 2000 Compliant" shall mean that the Computer Software (i)
accurately processes date/time data (including, but not limited to, calculating,
comparing, sequencing, storing and displaying) from, into, and between the
twentieth and twenty-first centuries, the years 1999 and 2000 and leap year
calculations, (ii) will operate prior to, during, and after the calendar year
2000 AD without error relating to the production of date data which represents
or references different centuries or more than one century, (iii) will respond
to two-digit date input in a manner which resolves any ambiguity as to century
in a disclosed, defined and predetermined manner, and (iv) will store and
provide output of date information in manners that are unambiguous as to
century.
References in this Agreement to articles, sections or exhibits shall be to
articles and sections of, or exhibits to, this Agreement, unless expressly
otherwise provided. The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
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ARTICLE II
PURCHASE AND SALE OF SHARES; RELATED TRANSACTIONS
2.1 Purchase and Sale. Upon the terms and subject to the
conditions of this Agreement, at the Closing, (a) PM Holdings shall sell,
convey, assign, transfer and deliver to TCW/EMCO Holding, and TCW/EMCO Holding
shall purchase, acquire and accept from PM Holdings, the TCW/EMCO Shares, free
and clear of all Liens (other than Liens (x) arising from actions taken by
TCW/EMCO Holding, or (y) created pursuant to the Shareholders Agreement, the
Pledge Agreement or the Assignment Agreement) and, (b) TCW/EMCO Holding will pay
to PM Holdings the following purchase price (the "Purchase Price"): (i) US$15
million in cash, by wire transfer of immediately available funds to the account
designated by PM Holdings and (ii) the Notes.
2.2 The Closing. Subject to the terms and conditions hereof,
the closing of the purchase and sale of the TCW/EMCO Shares (the "Closing")
shall take place at the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, LLP at
10:00 a.m., New York time, on or before November 12, 1999, provided that all of
the conditions set forth in Article VI hereof have been satisfied or waived by
the parties (the "Closing Date"), or at such other place or such other time or
date as the parties may agree.
2.3 Deliveries by PM Holdings and the Company. Subject to
the terms and conditions hereof, at the Closing, PM Holdings shall deliver, or
cause the Company and Phoenix to deliver, the following to TCW/EMCO Holding:
(a)(i) the Shareholders Agreement duly executed by PM Holdings
substantially in the form of Exhibit A;
(ii) the revised By-laws of the Company duly authorized by
the Company, substantially in the form of Exhibit B;
(iii) the Assignment Agreement duly executed by PM Holdings,
substantially in the form of Exhibit C;
(iv) the Pledge Agreement duly executed by PM Holdings,
substantially in the form of Exhibit D; and
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(v) the Phoenix/TCW Letter Agreement duly executed by
Phoenix, substantially in the form of Exhibit H.
(b) certificates representing the TCW/EMCO Shares and evidence
that the Company has received notice of the transfer of such Shares (Art. 215
Law 19550);
(c) evidence that each of the Company, PM Holdings and
Phoenix (to the extent required by Law or its organizational documents) have
been authorized to execute and deliver, in the case of PM Holdings, this
Agreement and, in the case of the Company, PM Holdings and Phoenix, each
Ancillary Agreement to which it is a party;
(d) documentation confirming that the Company, the Company
Subsidiaries and PM Holdings have taken all action necessary to (i) ensure that
the Board and the board of directors of each Company Subsidiary, and each
committee thereof (including, without limitation, the Comite de Control
Interno), and the officers of the Company and the Company Subsidiaries, meet the
requirements of Section 2.1(b) of the Shareholders Agreement, all as set forth
on Exhibit J, with all resignations of current members and appointments of new
members to be in the form set forth in Exhibit K, (ii) adopt the By-laws, and
(iii) effect the Conversion;
(e) documentation confirming that PM Holdings, the Company
and Phoenix have received all approvals and consents required for the
transactions contemplated by this Agreement and the Ancillary Agreements,
including, without limitation, the Approvals;
(f) documentation confirming that the representations made
by PM Holdings in Section 3.2 are true and correct in all respects;
(g) the officer's certificates described in Section 6.1(e);
(h) the opinions of United States and Argentine counsel to
PM Holdings, the Company and Phoenix described in Section 6.1(f) substantially
in the form of Exhibits I-1 and I-2;
(i) evidence that CT Corporation System has accepted the
irrevocable appointment as Process Agent with respect to PM Holdings in
accordance with the terms of Section 9.7; and
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(j) all other documents, instruments, certificates and
writings required to be delivered by PM Holdings, Phoenix or the Company at or
prior to the Closing Date pursuant to this Agreement and the Ancillary
Agreements.
2.4 Deliveries by TCW/EMCO Holding. Subject to the terms and
conditions hereof, at the Closing, TCW/EMCO Holding will deliver, or cause the
TCW/LAP Fund to deliver, the following to PM Holdings:
(a) the Purchase Price as described in Section 2.1;
(b)(i) the Shareholders Agreement duly executed by TCW/EMCO
Holding, substantially in the form of Exhibit A;
(ii) the Assignment Agreement duly executed by TCW/EMCO
Holding and the TCW/LAP Fund, substantially in the form of Exhibit C;
(iii) the Pledge Agreement duly executed by TCW/EMCO Holding,
substantially in the form of Exhibit D;
(iv) Promissory Note No. 1 executed by TCW/EMCO Holding,
substantially in the form of Exhibit E;
(v) Promissory Note No. 2 duly executed by TCW/EMCO Holding,
substantially in the form of Exhibit F;
(vi) the Investment Commitment duly executed by TCW/EMCO
Holding and the TCW/LAP Fund, substantially in the form of Exhibit G; and
(vii) the Phoenix/TCW Letter Agreement, duly executed by the
TCW/LAP Fund, substantially in the form of Exhibit H;
(c) evidence that TCW/EMCO Holding and the TCW/LAP Fund (to
the extent required by Law or its organizational documents) has been authorized
to execute and deliver, in the case of TCW/EMCO Holding, this Agreement, and, in
the case of TCW/EMCO Holding and the TCW/LAP Fund, each Ancillary Agreement to
which it is a party;
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(d) documents confirming that TCW/EMCO Holding and the
TCW/LAP Fund have received all approvals and consents required for the
transactions contemplated by this Agreement and the Ancillary Agreements,
including, without limitation, the Approvals;
(e) the officer's certificate described in Section 6.2(e);
(f) the opinions of United States and Argentine counsel to
TCW/EMCO Holding and the TCW/LAP Fund described in Section 6.2(f), substantially
in the form of Exhibits I-3 and I-4;
(g) certificate representing the TCW/EMCO Shares required to
be pledged under the Pledge Agreement and evidence that the Company has received
notice of the pledge of such Shares; and
(h) all other documents, instruments, certificates and
writings required to be delivered by TCW/EMCO Holding or the TCW/LAP Fund at or
prior to the Closing Date pursuant to this Agreement and the Ancillary
Agreements.
2.5 Closing Events. All of the transactions and actions
listed in Sections 2.3 and 2.4, above shall be deemed to have taken place
simultaneously and no delivery or payment shall be deemed to have been made
until all steps taken at the Closing had been completed in form and substance
reasonably satisfactory to TCW/EMCO Holding and PM Holdings and their respective
counsel.
2.6 Reduction in Purchase Price. Any payment made by PM
Holdings pursuant to Section 4.4 of the Shareholders Agreement shall be treated
for purpose of U.S. federal income taxes as a reduction in the Purchase Price.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PM HOLDINGS
PM Holdings hereby represents and warrants to TCW/EMCO Holding
that:
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3.1 Organization and Corporate Power.
(a) The Company is duly organized, validly existing and in
good standing under the laws of Argentina; has full power and authority to own,
lease and operate all of its properties and assets and to carry on its business
as it is now being conducted; and is duly qualified or licensed to do business
as a foreign corporation or other entity in good standing in each jurisdiction
in which such qualification is necessary, other than any immaterial failure to
be so qualified or licensed. PM Holdings has caused the Company to deliver to
TCW/EMCO Holding complete and correct copies of the certificate of incorporation
and the by-laws of the Company as currently in effect.
(b) Each of PM Holdings and Phoenix is duly organized, and
is validly existing and in good standing, under the Laws of its jurisdiction of
organization.
3.2 Subsidiaries and Affiliates. Section 3.2 of the
Disclosure Schedule sets forth the name, jurisdiction of incorporation and
authorized and outstanding capital of each Company Subsidiary and the
jurisdictions in which each Company Subsidiary is qualified to do business.
Except as set forth in Section 3.2 of the Disclosure Schedule, all of the
outstanding capital stock of each Company Subsidiary is owned directly or
indirectly by the Company as set forth in Section 3.2 of the Disclosure
Schedule, free and clear of all Liens, and is validly issued, fully paid and
nonassessable. Profuturo Cia. de Seguros de Retiro S.A., A.F.J.P. Prorenta S.A.
and Profuturo Cia. de Seguros de Vida together comprise all of the Company
Subsidiaries (collectively with the Company, the "EMCO Group"). Each Company
Subsidiary (i) is duly organized, validly existing and in good standing under
the laws of its jurisdiction of incorporation; (ii) has full power and authority
to own, lease and operate all of its properties and assets and to carry on its
business as it is now being conducted; and (iii) is duly qualified or licensed
to do business as a foreign corporation or other entity in good standing in each
jurisdiction in which such qualification is necessary, other than any immaterial
failure to be so qualified or licensed. The Company has heretofore delivered to
TCW/EMCO Holding complete and correct copies of the certificate of incorporation
and by-laws (or similar organizational documents) of each Company Subsidiary, as
currently in effect. Section 3.2 of the Disclosure Schedule sets forth each
Person in which the Company owns a 10% or greater equity interest and the
Company's interest therein.
3.3 Authorization.
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(a) Each of the Company and Phoenix has the requisite power
and authority to execute and deliver each of the Ancillary Agreements to which
it is a party and to consummate the transactions contemplated hereby and
thereby. The execution and delivery of each of the Ancillary Agreements to
which it is a party and the consummation of the transactions contemplated
thereby have been duly and validly authorized by all requisite corporate and
shareholder action on the part of the Company and all requisite corporate
action on the part of Phoenix. At the Closing the Ancillary Agreements to which
it is a party will be, duly and validly executed and delivered by each of the
Company and Phoenix, and the Ancillary Agreements to which it is a party will,
upon execution and delivery thereof by the Company and Phoenix, constitute,
valid and binding agreements of the Company and Phoenix, as applicable,
enforceable against it in accordance with their terms, except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and other similar laws of general application affecting enforcement
of creditors' rights generally and general principles of equity.
(b) PM Holdings has the requisite power and authority to
execute and deliver this Agreement and each of the Ancillary Agreements to which
it is a party and to consummate the transactions contemplated hereby and
thereby. This Agreement has been duly and validly executed and delivered by PM
Holdings and this Agreement and the Ancillary Agreements to which it is a party,
upon execution and delivery thereof by PM Holdings will constitute, valid and
binding agreements of PM Holdings enforceable against PM Holdings in accordance
with their terms, except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other similar laws of
general application affecting enforcement of creditors' rights generally and
general principles of equity.
3.4 Capitalization.
(a) The 23,060,000 Shares represent the only authorized,
issued and outstanding type of shareholding, equity, capital or similar
interests in or securities of the Company. All of the Shares are duly
authorized, validly issued, fully paid and non-assessable. There are no
securities convertible into or exchangeable for equity of the Company or
containing any profit participation features or any indebtedness having voting
rights or indebtedness convertible into securities having such rights, nor are
there any options, warrants or other rights or agreements, arrangements or
understandings to issue, subscribe for or purchase equity of the Company or any
securities convertible into or exchangeable for equity of the
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Company, or granting any person any rights in the Company or its securities
other than rights granted to (i) TCW/EMCO Holding pursuant to this Agreement,
(ii) the Parties pursuant to the Shareholders Agreement, and (iii) PM Holdings
pursuant to the Pledge Agreement and the Assignment Agreement.
(b) On October 21, 1999, PM Holdings caused the Company to
effect the Conversion, consisting of converting 9,135,00 shares of nominative
nonendorsable Class B common stock, par value $1 per share, with one vote per
share, having been all the authorized shares of such class prior to such date,
into an equal number of nominative nonendorsable Class A common stock, par value
$1 per share, with one vote per share. Such Conversion was made in compliance
with all applicable Laws and no Approvals are required for the effectiveness or
binding nature of such Conversion.
(c) Except as provided in Section 3.4 of the Disclosure
Schedule, there are no outstanding contractual obligations of the Company or any
Company Subsidiary to repurchase, redeem or otherwise acquire any Shares, or any
other capital stock of any Company Subsidiary or Affiliate of the Company or to
provide funds to make any investment (in the form of a loan, capital
contribution or otherwise) in any Company Subsidiary or any other entity.
3.5 Ownership, No Liens.
(a) All of the Shares are owned of record and beneficially
by PM Holdings free and clear of all liens, pledges, charges, claims,
restrictions, options, security or other interests or other encumbrances,
whether consensual, statutory or otherwise, of any kind whatsoever
(collectively, "Liens"), other than the right of TCW/EMCO Holding to purchase
Shares under this Agreement.
(b) Upon the sale of the TCW/EMCO Shares to TCW/EMCO Holding
pursuant hereto, TCW/EMCO Holding will have good and valid title to the TCW/EMCO
Shares, free and clear of all Liens (except for any Liens (i) arising from
actions taken by TCW/EMCO Holding or (ii) created pursuant to the Shareholders
Agreement, the Pledge Agreement or the Assignment Agreement).
3.6 Consents and Approvals; No Violations. Except as set
forth in Section 3.6 of the Disclosure Schedule, neither the execution and
delivery of this Agreement or the Ancillary Agreements to which they are parties
by PM Holdings, the Company, or Phoenix nor the consummation by each of PM
Holdings, the
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Company or Phoenix of the transactions contemplated hereby or thereby, will (a)
conflict with or result in any breach of any provision of the certificate of
incorporation or bylaws (or similar organizational documents) of the Company,
any Company Subsidiary, PM Holdings or Phoenix; (b) result in a violation or
breach of, or constitute (with or without due notice or lapse of time or both) a
default (or give rise to any right of termination, modification, cancellation or
acceleration) under, or require any consent or the payment of any penalty,
premium or other amount under, any (i) license, contract, lease, agreement,
Indebtedness agreement or instrument or other instrument or obligation to which
the Company, any Company Subsidiary, PM Holdings or Phoenix is a party or by
which any of them or any of their respective properties or assets are bound, or
(ii) confidentiality or exclusivity agreement relating to the Company, any
Company Subsidiary, PM Holdings or Phoenix or their respective businesses and
operations; (c) violate any federal, state or local order, writ, injunction,
decree, statute, rule, regulation or ordinance in Argentina, the United States
or elsewhere (collectively, the "Laws" and, individually, a "Law") applicable to
the Company, any Company Subsidiary, PM Holdings or Phoenix or any of their
respective properties or assets; or (d) require any filing, notification or
publication with, or the obtaining of any license, permit, authorization,
consent, registration or approval of, any Governmental Entity (collectively, the
"Approvals"); except in the case of clauses (b)(i) and (c) above for such
violations, breaches, defaults or consents which would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect on the
EMCO Group or to materially impair any of the Company's or the Phoenix Group's
ability to consummate the transactions contemplated by this Agreement or the
Ancillary Agreements. Notwithstanding the foregoing, both PM Holdings and
TCW/EMCO Holding acknowledge and agree that neither the execution and delivery
of this Agreement or the Ancillary Agreements to which they, Phoenix and the
Company are parties, nor the consummation by each of PM Holdings, TCW/EMCO
Holding, the Company or Phoenix of the transactions contemplated hereby or
thereby will require the approval contemplated under Argentine Law 25,156, as
approved by Decree 1,019/99 of September 16, 1999 (the "Defense of Competition
Law"), by the Comision Nacional de Defensa de Ia Competencia or by the Tribunal
Nacional de Defensa de la Competencia created under the Defense of Competition
Law.
3.7 Financial Statements. Section 3.7 of the Disclosure
Schedule contains the audited balance sheets of the Company and its Subsidiaries
as of June 30, 1998 and June 30, 1999, the audited statements of operations and
statements of profits and losses of the Company and its Subsidiaries for the
fiscal years ended June 30, 1998 and June 30, 1999 and the unaudited balance
sheet, statement of operations
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and statement of profits and losses of the Company and its Subsidiaries at and
for the three-month period ended September 30, 1999 (the "First Quarter
Financial Statements" and collectively with the foregoing audited balance
sheets, statements of operations and statements of profits and losses, the
"Financial Statements"). Except as disclosed therein and except as set forth in
Section 3.7 of the Disclosure Schedule, the Financial Statements fairly present
in all material respects the financial position of the Company and its
Subsidiaries as of the respective dates thereof, and the results of operations
of the Company and its Subsidiaries for the respective periods indicated, in
each case in accordance with Argentine GAAP.
3.8 Absence of Undisclosed Liabilities. Except (a) for
liabilities and obligations incurred in the ordinary course of business and
consistent with past practice since June 30, 1999, (b) immaterial liabilities or
obligations, (c) liabilities or obligations as and to the extent identified as a
liability on the audited balance sheet of the Company and its Subsidiaries as of
June 30, 1999 or on the First Quarter Financial Statement, or as and to the
extent reserved against in the audited statement of operations and profits and
losses of the Company and its Subsidiaries for the fiscal year ending June 30,
1999 or on the First Quarter Financial Statements, or (d) as disclosed in
Section 3.8 of the Disclosure Schedule, neither the Company nor any Company
Subsidiary has any liabilities or obligations of any nature whatsoever (whether
known, unknown, absolute, direct, indirect, accrued, contingent or otherwise.
3.9 Absence of Certain Changes. Except as provided in
Section 3.9 of the Disclosure Schedule, since June 30, 1999, the EMCO Group has
not suffered any Material Adverse Effect and none of the matters described in
Section 5.1 has occurred.
3.10 Litigation. Except as set forth in Section 3.10 of the
Disclosure Schedule, there is no action, suit, proceeding or governmental
investigation pending or, to the knowledge of PM Holdings or any of the EMCO
Group, threatened against or by the Company, any Company Subsidiary, PM
Holdings, or, to the extent related to any of the foregoing entities, Phoenix,
by or before any court or Governmental Entity which, individually or in the
aggregate, would reasonably be expected to have a Material Adverse Effect on the
EMCO Group or to materially impair any of the Company's, PM Holdings' or
Phoenix's ability to consummate the transactions contemplated by this Agreement
or the Ancillary Agreements.
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3.11 Compliance with Law.
(a) Except as provided in Section 3.11(a) of the Disclosure
Schedule, each of the Company, the Company Subsidiaries, PM Holdings and, to the
extent related to any of the foregoing entities, Phoenix, is and has at all
times been in compliance with all applicable Laws (other than non-material
regulatory compliance matters arising in the ordinary course of regulatory
oversight by the Superintendents) and no material notice, charge, claim, action
or assertion has at any time been received by the Company, any Company
Subsidiary, PM Holdings or, to the extent related to any of the foregoing
entities, Phoenix, or has at any time been filed, commenced or, to the knowledge
of PM Holdings or any of the EMCO Group, threatened against the Company, any
Company Subsidiary, PM Holdings or, to the extent related to any of the
foregoing entities, Phoenix, alleging any violation of any of the foregoing.
Without limiting the foregoing, none of the Company, any Company Subsidiary, PM
Holdings or Phoenix, or any current director, officer, employee or Affiliate of
the Company, any Company Subsidiary, PM Holdings or Phoenix, employed by such
entity within the last five years (i) is currently, (ii) since January 1, 1998,
has been or (iii) to the knowledge of the EMCO Group, PM Holdings or Phoenix has
during the period of the last seven years through December 31, 1997 been,
subject to prosecution (other than non-material ordinary course regulatory
oversight review by the Superintendents) for any violation of Law relating to,
or arising from, the conduct of the business of the Company or the Company
Subsidiaries, including, without limitation, any violation of the Foreign
Corrupt Practices Act.
(b) The Company and each Company Subsidiary has all
licenses, permits, orders, approvals, registrations, authorizations,
qualifications and filings with and under all Governmental Entities required by
Law to conduct the Business in the manner and in the areas in which the Business
is presently being conducted by each such Person, and all such licenses,
permits, orders, approvals, registrations, authorizations, qualifications and
filings are valid and in full force and effect (other than any absence or
invalidity of immaterial licenses, permits, orders, approvals, registrations,
authorizations, qualifications or filings). The Company and each Company
Subsidiary has filed all reports, statements, documents, registrations, filings
or submissions (including, without limitation, any sales material and statutory
financial statements) required by Law to be filed by such Person, as applicable,
with any Governmental Entity (other than any failure to make an immaterial
filing). Except as listed on Section 3.11(b) of the Disclosure Schedule, all
such reports, registrations, filings and submissions were true, complete and
accurate in all material
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respects and in compliance in all material respects with applicable Law, when
filed or as amended or supplemented, and, to the knowledge of PM Holdings and
the EMCO Group, no material deficiencies have been asserted by any such
Governmental Entity with respect to such reports, registrations, filings or
submissions that have not been remedied.
3.12 Environmental.
For purposes of this Section 3.12, the following definitions are
agreed to:
"Environmental Laws" shall mean all applicable Laws relating to
pollution or protection of the environment or human health and safety, the
manufacture, processing, distribution, use, treatment, storage, release to the
environment, transport or handling of Hazardous Substances, including without
limitation, all applicable Laws with regard to record keeping, notification,
disclosure and reporting requirements respecting Hazardous Substances; and all
applicable Laws relating to endangered or threatened species of fish, wildlife
and plants and the management or use of natural resources.
"Hazardous Substances" shall mean any substance that is listed,
classified or regulated pursuant to any Environmental Law.
Except as set forth on Schedule 3.12 of the Disclosure Schedule:
(a) there are no liabilities of the Company or any of the
Company Subsidiaries of any kind whatsoever, whether accrued, contingent,
absolute, determined or otherwise arising or relating to any Environmental Law,
and, to the knowledge of PM Holdings or any of the EMCO Group, there are no
existing facts, conditions, situations or set of circumstances that would
reasonably be expected to result in or be the basis for any such liability;
(b) neither the Company nor any of the Company
Subsidiaries has received any notice, demand, letter, claim or request for
information alleging that the Company or any of the Company Subsidiaries may be
in violation in any material respect of or liable under any Environmental Law;
and
(c) neither the Company nor any of the Company
Subsidiaries is subject to any orders, decrees, injunctions or other written
arrangements with any
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Governmental Entity relating to liability under any Environmental Law or
relating to Hazardous Substances.
3.13 Labor Relations.
(a) Section 3.13(a) of the Disclosure Schedule sets
forth, as of the date hereof, all collective bargaining or similar agreements
with any labor unions or associations representing employees of the Company or
any Company Subsidiary (collectively, the "Labor Agreements").
(b) Section 3.13(b) of the Disclosure Schedule sets forth
as of the date hereof, all employment, management, consulting, severance or
other service agreements requiring payments in excess of US$50,000 in any fiscal
year, which agreements are currently in effect between the Company and any
Person for the purposes of providing the Company and the Company Subsidiaries
with the necessary personnel services to conduct the Business.
(c) Except as set forth on Section 3.13(c) of the
Disclosure Schedule, (i) there is no labor strike, slowdown, lockout, work
stoppage, arbitration, lawsuit or administrative proceeding relating to labor or
employment matters, or other labor dispute pending against, or to the knowledge
of PM Holdings or any of the EMCO Group, threatened against the Company or any
Company Subsidiary; (ii) there is no unfair labor practice charge or other
proceeding involving the Company or any Company Subsidiary pending, or to the
knowledge of PM Holdings or any of the EMCO Group, threatened before any labor
court or any similar agency; and (iii) the Company and each Company Subsidiary
is and has at all times been in compliance in all material respects with all
applicable Laws relating to the employment of labor, including all such Laws
relating to wages and hours, labor relations, civil rights, safety and health,
workers' compensation and social security and other taxes (collectively, the
"Labor Laws").
(d) To the knowledge of PM Holdings, the Company or any
Company Subsidiary, each employee of the Company and each Company Subsidiary
required by Law to be licensed or bonded is duly licensed or bonded, as
applicable, and is in compliance with their respective licenses and bonds.
3.14 Employee Benefits. Neither the Company nor any of its
Subsidiaries has any employees in the United States. Section 3.14 of the
Disclosure Schedule sets forth all employee benefit plans, programs, agreements
and arrange-
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ments (other than those mandated by applicable Law) established, maintained or
contributed to (or required to be contributed to) by the Company and of the
Company Subsidiaries for the benefit of directors and employees, or former
directors or employees, of the Company and Company Subsidiaries (the "Plans").
With respect to the Plans, (a) such Plans are in material compliance with any
applicable Laws, including relevant Tax Laws, and the requirements of any trust
deed under which they are established, and (b) all employer and employee
contributions to each such Plan required by Law or by the terms of such Plan
have been made, or, if applicable, accrued, in accordance with Argentine GAAP,
and (c) consummation of the transactions contemplated by this Agreement or the
Ancillary Agreements will not, either alone or with another event, entitle any
employee or former employee of the Company or any ERISA Affiliate to any payment
or accelerate the time or vesting, or increase the amount of any compensation
due any such individual.
3.15 Taxes.
(a) Except as set forth on Section 3.15 of the Disclosure
Schedule, or to the extent specifically reserved against in the Financial
Statements:
(i) (A) the Company and all Company Subsidiaries have
timely filed (or have had timely filed on their behalf) or will timely file or
cause to be timely filed, all material Tax Returns required by applicable Law to
be filed by any of them prior to or as of the Closing Date; (B) all Taxes shown
as due and payable on such Tax Returns have been timely paid and (C) all such
Tax Returns and amendments thereto are or will be true, complete and correct in
all material respects;
(ii) the Company and each Company Subsidiary have paid or
will have paid on or before the Closing Date (or have had paid or will have had
paid on or before the Closing Date on their behalf), or where payment is not yet
due, have established (or have had established on their behalf and for their
sole benefit and recourse), or will establish or cause to be established on or
before the Closing Date, an adequate accrual for the payment of all Taxes due
with respect to any period ending prior to or as of the Closing Date;
(iii) no Audit by a Tax Authority is pending or, to the
knowledge of PM Holdings or any of the EMCO Group, threatened with respect to
any material Tax Returns filed by, or material Taxes due from, the Company or
any Company Subsidiary;
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(iv) there are no Liens for Taxes with respect to any
material asset of the Company or any Company Subsidiary other than Liens for
Taxes not yet due or payable or for Taxes being contested in good faith;
(v) neither the Company nor any Company Subsidiary is subject
to any agreement relating to Taxes; and
(vi) PM Holdings has previously delivered or made available to
TCW/EMCO Holding complete and accurate copies of each of: (A) all audit reports
and rulings relating to Taxes due from or with respect to the Company or any
Company Subsidiary, (B) Tax Returns filed by the Company or any Company
Subsidiary and (C) any agreements entered into by the Company or any Company
Subsidiary with any Tax Authority, in each case currently in effect or in effect
at any time during the last three fiscal years.
Through the Closing Date, the Company will deliver or make available to TCW/EMCO
Holding all materials with respect to the foregoing for all matters arising
after the date hereof.
(b) For purposes of this Agreement, (i) "Audit" shall mean
any audit, assessment of Taxes, other examination by any Tax Authority,
proceeding or appeal of such proceeding relating to Taxes; (ii) "Taxes" shall
mean all domestic and foreign federal, provincial, state, municipal and local
taxes, and other assessments of a similar nature (whether imposed directly or
through withholding), including any interest, additions to Tax, or penalties
applicable thereto; (iii) "Tax Authority" shall mean the Internal Revenue
Service, the Administracion Federal de Ingresos Publicos-AFIP and any other
domestic or foreign governmental authority responsible for the administration of
any Taxes; and (iv) "Tax Returns" shall mean all domestic or foreign federal,
provincial, state, municipal or local Tax Returns, declarations, statements,
reports, schedules, forms and information returns and any amended Tax Return
relating to Taxes.
3.16 Property; Assets.
(a) Section 3.16 of the Disclosure Schedule sets forth a
complete and accurate list of (i) all of the real property owned by the Company
and the Company Subsidiaries (the "Owned Real Property") and (ii) all of the
real property leased or subleased by the Company or a Company Subsidiary from a
third party requiring payments in excess of US$20,000 in any fiscal year (the
"Leased Real
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Property" and, together with the Owned Real Property, the "Real Property"). As
of the Closing, except as set forth in Section 3.16 of the Disclosure Schedule
the Company and the Company Subsidiaries will have (x) (A) good title to its
interest in the applicable Owned Real Property and (B) a valid leasehold
interest in the Leased Real Property as provided in the applicable lease
agreements (the "Real Property Leases") and (y) with respect to any other
material property and assets, good title to its interest in such property and
assets, in each case, free and clear of all Liens, except for (A) Liens,
encumbrances, defects, exceptions, easements, rights of way, restrictions,
covenants, claims or other similar charges listed or identified in Section 3.16
of the Disclosure Schedule with respect to the applicable Real Property, (B)
Liens, encumbrances, defects, easements, rights of way, restrictions, covenants,
claims or other similar charges, whether or not of record, which do not,
individually or in the aggregate, materially impact the use or operation of the
Real Property in connection with the Business consistent with the current use
thereof, (C) Liens for Taxes and other governmental charges and assessments
which are not yet due and payable or which are being contested in good faith by
appropriate proceedings, (D) Liens of carriers, warehousemen, mechanics and
materialman, and (E) other Liens which do not materially interfere with the use
or value of the properties affected thereby. (Liens under (A) through (E)
immediately above are together referred to herein as "Permitted Liens").
(b) With respect to the Leased Real Property, none of the
Company, any Company Subsidiary or PM Holdings has received a written notice
of (i) any monetary default or other material default thereunder or (ii)
material noncompliance with any applicable Laws, except as set forth on Section
3.16 of the Disclosure Schedule.
(c) Except as set forth on Section 3.16 of the Disclosure
Schedule, since January 1, 1998, and, to the knowledge of the EMCO Group and PM
Holdings, during the period from January 1, 1995 through December 31, 1997, none
of the Company, any Company Subsidiary, PM Holdings or Phoenix has received any
written notice from any Governmental Entity with respect to the Real Property of
any violations of any Laws, which violation has not been cured, is not in the
process of being cured or contested in good faith.
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3.17 Material Contracts; Approvals.
(a) Section 3.17 of the Disclosure Schedule sets forth a
list, as of the date hereof, of all material Approvals of the Company and the
Company Subsidiaries and the following contracts, agreements or arrangements to
which the Company or a Company Subsidiary is a party (collectively, the
"Material Contracts"):
(i) each employment, management, consulting and other
agreement involving compensation for services rendered or to be rendered which
require payments in excess of US$50,000 during any fiscal year, including sales
commissions;
(ii) any credit agreement, loan agreement, guarantee,
indenture, note, mortgage, security agreement, loan commitment, evidence of
indebtedness, or other contract relating to Indebtedness to which any member of
the EMCO Group is a party, other than investments by such members in the
ordinary course of their businesses, in excess of US$100,000;
(iii) all material agreements granting or obtaining any right
to use or practice any rights under any Intellectual Property or Computer
Software, to which Company or any Company Subsidiary is a party or otherwise
bound, including license agreements, settlement agreements, and covenants not to
▇▇▇;
(iv) any other contract entered into (A) in the ordinary
course of business which involves the payment or receipt of an amount in excess
of US$50,000 per fiscal year or (B) outside of the ordinary course of business;
(v) any contract pursuant to which the Company or any
Company Subsidiary has acquired or disposed of another business entity or all or
substantially all of the assets thereof;
(vi) all powers of attorney granted by the Company or any
Company Subsidiary with respect to the Business that are currently in effect;
(vii) any agreement containing any noncompetition provisions
or any other restriction on the ability of the Company or any Company Subsidiary
to carry on their respective businesses anywhere in the world; and
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(viii) any partnership or joint venture agreement to which the
Company or any Company Subsidiary is a party.
PM Holdings or the Company has made available in Argentina to TCW/EMCO Holding
true and complete copies of all Material Contracts. All of the Material
Contracts are valid, binding and enforceable obligations of the Company and the
Company Subsidiaries, as applicable, and are in full force and effect. The
Company Subsidiaries are not, and, to the knowledge of PM Holdings and the EMCO
Group, no other party to any Material Contract is, in material breach of or
default under any such Material Contract.
3.18 Insurance.
(a) Section 3.18 of the Disclosure Schedule sets forth a
true and complete list of each insurance policy (the "Insurance Policies") that
is maintained, or was maintained by the Company or any Company Subsidiary at any
time since June 30, 1998 the purpose of which was to insure against material
risk of loss to the Business, the Company or any Company Subsidiary.
(b) With respect to each such Insurance Policy (i) the
policy is valid, binding and enforceable in accordance with its terms and,
except for policies that have expired under their terms in the ordinary course,
is in full force and effect; (ii) neither the Company nor any Company Subsidiary
is in breach or default, and no event has occurred which, with notice or the
lapse of time, would constitute such a breach or default, under the policy; and
(iii) no party to the policy has repudiated, or given written notice to the
Company or any Company Subsidiary of an intent to repudiate, any material
provision thereof.
3.19 Intellectual Property.
(a) Section 3.19 of the Disclosure Schedule sets forth, for
the Company Intellectual Property, a complete and accurate list of all US and
foreign (i) Patents; (ii) Trademarks, (iii) Copyrights. Such list includes, for
each of the foregoing, the applicable record owner, jurisdiction and
registration and/or application member, and date issued (or filed). Except as
set forth in Section 3.19 of the Disclosure Schedule, either the Company or a
Company Subsidiary owns, free and clear of all Liens (except for Liens which do
not, individually or in the aggregate, materially interfere with the use or
operation of the Company Intellectual Property), is licensed or otherwise
possesses legally enforceable rights to use, the Company
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Intellectual Property, and the consummation of the transactions hereby and by
the Ancillary Agreements will not alter or impair such ability in any respect.
Except as set forth in Section 3.19 of the Disclosure Schedule, there are no
oppositions, cancellations, invalidity proceedings, interferences or
re-examination proceedings presently pending with respect to the Company
Intellectual Property. Except as set forth in Section 3.19 of the Disclosure
Schedule, the conduct of the Business and the Company Intellectual Property does
not infringe any Intellectual Property rights or any other proprietary right of
any Person. Neither the Company, any Company Subsidiary nor PM Holdings has
received any written notice from any other Person pertaining to or challenging
the right of the Company or any Company Subsidiary to use any of the Company
Intellectual Property. Neither the Company nor any Company Subsidiary has made
any claim of a violation or infringement by others of its rights to or in
connection with the Company Intellectual Property which is still pending.
(b) Section 3.19 of the Disclosure Schedule lists all
Computer Software which is owned, licensed, leased, or otherwise used by Company
or any Company Subsidiary, and identifies which Computer Software is owned,
licensed, leased, or otherwise used, as the case may be. All Computer Software
used in the Business is either owned by the Company or a Company Subsidiary or
is used pursuant to valid and subsisting licenses which are in full force and
effect, and have not been cancelled, expired, or abandoned. The Company and the
Company Subsidiaries have such title or such rights by license or other
agreement to all of the Computer Software used by the Company and the Company
Subsidiaries as are necessary to permit the Company and the Company Subsidiaries
to conduct the Business as currently conducted. All Computer Software of the
Company and each of the Company Subsidiaries is, or will be prior to December
31, 1999 Year 2000 Compliant in all material respects. With respect to third
party developed Computer Software, PM Holdings shall be entitled to rely upon
assurances received by the Company, any of the Company Subsidiaries or their
Affiliates.
3.20 Brokers; Finders and Fees. None of the Company, any
Company Subsidiary, PM Holdings or Phoenix nor any of their Subsidiaries or
Affiliates has employed any investment banker, broker or finder or has incurred
any liability for any investment banking fees, brokerage fees, commissions or
finders' fees in connection with this Agreement or the Ancillary Agreements or
the transactions contemplated hereby or thereby.
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3.21 Transactions with Certain Persons. Except as disclosed
on Section 3.21 of the Disclosure Statement, no director, officer, employee,
associate or Affiliate of the Company or of any Company Subsidiary or any member
of such Person's immediate family, and to the knowledge of the Company and any
of the EMCO Group, neither PM Holdings nor Phoenix or any officer of either of
them with responsibilities regarding the Company or the Company Subsidiaries
(each such Person with respect to the Company, any Company Subsidiary, PM
Holdings and Phoenix, a "Related Person") is, or has since January 1, 1998 been,
a party to any contract, agreement, arrangement or transaction with the Company
or any Company Subsidiary (other than ordinary course compensation and benefits
to directors, officers and employees, and the management of pension funds and
issuance of insurance contracts or annuities in the ordinary course of business
by the Company or any of the Company Subsidiaries).
3.22 Disclosure. To the knowledge of PM Holdings and the EMCO
Group, no representation, warranty or statement made by PM Holdings, Phoenix or
the Company in this Agreement, the Ancillary Agreements, the Disclosure
Schedule, any Schedule or Exhibit hereto or thereto contains any untrue
statement of a material fact or fails to state any material fact necessary to
make the statements contained herein or therein not misleading.
3.23 Investment Representation. PM Holdings is acquiring the
Notes for investment for its own account, not as a nominee or agent, and not
with a view to, or for resale in connection with, any distribution thereof in
violation of the Securities Act or any other applicable securities laws or
regulations.
3.24 Operations and Assets of the EMCO Group. None of the
Company or any Company Subsidiary conducts or, in the last three years, has
conducted any operations, established sales or other representative offices in
the U.S. or made sales in or into the territorial U.S. There are no assets of
the EMCO Group or investments under management of any of the Company or the
Company Subsidiaries located in the U.S. (other than voting or non-voting
securities, cash, deposits in financial institutions, other money market
instruments and instruments evidencing governmental obligations).
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3.25 Regulatory Matters.
(a) The aggregate reserves established by or on behalf of
each of the Company and the Company Subsidiaries in respect of liabilities and
other obligations arising under or relating to insurance, pension, annuity or
other contracts and Statutory Obligations (i) have been computed in accordance
with Argentine GAAP, consistently applied and (ii) meet all requirements of
applicable Law and meet or exceed the minimum aggregate amounts required to be
established pursuant to Law.
(b) To the knowledge of PM Holdings and the EMCO Group,
there has not been since June 30, 1999, a material reduction in the percentage
of Customers of A.F.J.P. Prorenta S.A. contributing the amounts of social
security savings deposits required by applicable Law nor has there been a
material reduction in the contributions made to A.F.J.P. Prorenta S.A.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF TCW/EMCO HOLDING
TCW/EMCO Holding hereby represents and warrants to PM Holdings
that:
4.1 Organization. Each of TCW/EMCO Holding and the TCW/LAP
Fund is duly organized, validly existing and in good standing as a limited
liability company or limited partnership, as applicable, under the laws of
Delaware.
4.2 Authorization. TCW/EMCO Holding has the requisite power
and authority to execute and deliver this Agreement, and each of the Ancillary
Agreements to which it is a party (such agreements, together with the Ancillary
Agreements to which the TCW/LAP Fund is a party, collectively, the "TCW
Documents") and to consummate the transactions contemplated hereby and thereby.
The TCW/LAP Fund has the requisite power and authority to execute and deliver
each of the Ancillary Agreements to which it is a party and to consummate the
transactions contemplated thereby. The execution and delivery of the TCW
Documents and the consummation of the transactions contemplated hereby and
thereby have been duly and validly authorized by all requisite company or
partnership action on the part of TCW/EMCO Holding and the TCW/LAP Fund. This
Agreement has
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been, and at the Closing the other TCW Documents will be, duly and validly
executed and delivered by TCW/EMCO Holding and the TCW/LAP Fund, as applicable.
This Agreement constitutes, and the other TCW Documents will, upon execution and
delivery thereof by TCW/EMCO Holding and the TCW/LAP Fund, as applicable,
constitute, valid and binding agreements of TCW/EMCO Holding and the TCW/LAP
Fund, as applicable, enforceable against them in accordance with their terms,
except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other similar laws of general application
affecting enforcement of creditors' rights generally and general principles of
equity.
4.3 Consents and Approvals; No Violations. Neither the
execution and delivery of the TCW Documents by TCW/EMCO Holding or the TCW/LAP
Fund nor the consummation by TCW/EMCO Holding or the TCW/LAP Fund of the
transactions contemplated hereby or thereby will (a) conflict with or result in
any breach of any provision of the operating agreement of limited partnership
(or similar organizational document) of TCW/EMCO Holding or the TCW/LAP Fund;
(b) result in a violation or breach of any license, contract, lease, agreement,
Indebtedness agreement or instrument or other instrument or obligation to which
TCW/EMCO Holding or the TCW/LAP Fund is a party or by which either of them or
either of their respective properties or assets are bound; (c) violate any Law
applicable to TCW/EMCO Holding or the TCW/LAP Fund or any of their respective
properties or assets; or (d) require any filing, notification or publication
with, or the obtaining of any Approvals, excluding from the foregoing clauses
(b), (c) and (d) such requirements, violations, breaches or defaults which arise
from the regulatory status of the Company or the Company Subsidiaries, and
except in the case of clauses (b) and (c) above for such violations or breaches
which would not, individually or in the aggregate, reasonably be expected to
materially impair TCW/EMCO Holding's or the TCW/LAP Fund's ability to consummate
the transactions contemplated by this Agreement or the Ancillary Agreements.
Notwithstanding the foregoing, both PM Holdings and TCW/EMCO Holding acknowledge
and agree that neither the execution and delivery of this Agreement or the
Ancillary Agreements to which they, Phoenix and the Company are parties, nor the
consummation by each of PM Holdings, TCW/EMCO Holding, the Company or Phoenix of
the transactions contemplated hereby or thereby will require the approval
contemplated under the Defense of Competition Law, by the Comision Nacional de
Defensa de la Competencia or by the Tribunal Nacional de Defensa de la
Competencia created under the Defense of Competition Law.
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4.4 Investment Representation. TCW/EMCO Holding is
acquiring the TCW/EMCO Shares for investment for its own account, not as a
nominee or agent, and not with a view to, or for resale in connection with, any
distribution thereof in violation of the Securities Act.
4.5 Brokers; Finders and Fees. Neither TCW/EMCO Holding, the
TCW/LAP Fund nor any of their Subsidiaries or Affiliates has entered into any
agreement or arrangement entitling any agent, broker, investment banker,
financial advisor or other firm or Person to any broker's or finder's fee or any
other commission or similar fee in connection with this Agreement or the
Ancillary Agreements or the transactions contemplated hereby or thereby.
4.6 Matters Relating to TCW/EMCO Holding. The TCW/LAP Fund
is the sole member of TCW/EMCO Holding owning 100% of the Equity Interests
therein. The investment by TCW/EMCO Holdings in the Company is permitted under
the organizational documents of the TCW/LAP Fund. TCW/EMCO Holding was formed on
September 24, 1999 and has carried on no business whatsoever except for the
entering into of this Agreement and other agreements related hereto and in
connection with the transactions contemplated hereby and thereby. Except
pursuant to or in connection with this Agreement or any Ancillary Agreement,
immediately prior to the Closing, TCW/EMCO Holding had no liabilities or
obligations of any nature whatsoever (whether direct, indirect, accrued,
contingent or otherwise). Upon the sale to TCW/EMCO Holding of the TCW Shares to
be pledged to PM Holdings to secure Promissory Note No. 2 (the "Pledged
Shares"), no Liens other than those contemplated by the Ancillary Agreements
will exist on the Pledged Shares (assuming that the representations and
warranties made by PM Holdings in Section 3.5(b) are true and correct).
4.7 Capital Call. The TCW/LAP Fund has made an irrevocable
capital call of its limited partners to fund the payment of the cash portion of
the Purchase Price and the repayment of all principal and interest on Promissory
Note No. 1. Assuming that the Closing hereunder shall have occurred, such
limited partners of the TCW/LAP Fund shall be unconditionally obligated to fund
such capital call, subject to bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other similar laws of general application
affecting enforcement of creditors' rights generally in each case as applicable
to the TCW/LAP Fund or the limited partners (but not the Company) and general
principles of equity. Such capital call cannot be rescinded or returned by the
TCW/LAP Fund after the Closing Date except by the TCW/LAP Fund (which TCW/LAP
Fund agrees not to so rescind or return), and
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contains no conditions precedent that will not have been met if the Closing
hereunder occurs, subject in each case to bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other similar laws of
general application affecting enforcement of creditors' rights generally in each
case as applicable to the TCW/LAP Fund or the limited partners (but not the
Company) and general principles of equity.
4.8 Litigation. There is no action, suit, proceeding or
governmental investigation pending or, to the knowledge of TCW/EMCO Holding,
threatened against or by, TCW/EMCO Holding by or before any court or
Governmental Entity which, individually or in the aggregate, would reasonably be
expected to materially impair either of TCW/EMCO Holding's or the TCW/LAP Fund's
ability to consummate the transactions contemplated by this Agreement or the
Ancillary Agreements.
ARTICLE V
COVENANTS OF THE PARTIES
5.1 Conduct of Business of the Company. During the period
from the date of this Agreement to the Closing Date, except as otherwise
specifically provided by this Agreement or consented to by TCW/EMCO Holding in
writing, PM Holdings shall cause the Company and the Company Subsidiaries to:
(a) conduct their respective businesses and operations in
the ordinary course consistent with past practice and not conduct any business
other than those carried out in the ordinary course of their businesses
consistent with past practice; and
(b) not (i) sell, lease, or dispose of any of their material
properties or assets, except in the ordinary course of their respective
businesses consistent with past practice; (ii) other than in the ordinary course
of their respective businesses consistent with their current investment
policies, make any loans, advances, or capital contributions to, or investments
in, or guarantee, endorse or otherwise become liable for the obligations of, any
other Person; (iii) terminate or materially amend any of the Material Contracts,
except in the ordinary course of their respective businesses consistent with
past practice; (iv) enter into any new material agreement or commitment, other
than renewals of existing agreements or otherwise than in the ordinary course of
their respective businesses consistent with past practice; (v) enter into any
employment or other agreement with any officer or
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employee or increase in any manner the compensation or benefits of any of its
officers or employees, except pursuant to a contract listed in Section 3.17 of
the Disclosure Schedule or as required by applicable Law; (vi) adopt, grant,
extend or increase the rate or terms of any bonus, insurance, pension or other
employee benefit plan, payment or arrangement made to, for or with any such
officers or employees, except increases required by any applicable Law; (vii)
incur or assume or, except as required by the terms thereof, pay, repay,
discharge, purchase, repurchase or satisfy, or modify, any Indebtedness, or
mortgage or encumber any of their respective properties or assets other than
immaterial Liens which do not restrict use or detract from value; (viii) pay or
declare any dividends or distributions with respect to or redeem or repurchase
any of its capital stock or equity interests; (ix) issue, sell, transfer,
pledge, dispose of or encumber any shares of any class or series of its capital
stock or Indebtedness having voting rights or Indebtedness convertible into
securities having such rights, or securities convertible into or exchangeable
for, or options, warrants, calls, commitments or rights of any kind to acquire,
any shares of any class or series of its capital stock or any Indebtedness
having voting rights or Indebtedness convertible into securities having such
rights, or split, combine or reclassify any shares of any class or series of its
stock; (x) permit any insurance policy naming it as a beneficiary or a loss
payable payee to be cancelled or terminated prior to the expiration date thereof
without notice to TCW/EMCO Holding, except policies providing coverage for
losses not in excess of US$50,000 which are replaced without diminution of or
gaps in coverage; (xi) make any change in any of its accounting methods and
practices, except as required by changes in Argentine GAAP; (xii) make any
change in its investment policies; (xiii) enter into or engage in any contract,
agreement, arrangement or transaction with a Related Party (other than ordinary
course compensation and benefits to directors, officers and employees, and the
management of pension funds and issuance of insurance contracts or annuities in
the ordinary course of business by the Company or any of the Company
Subsidiaries); (xiv) change any of the accounting or tax principles, practices
or methods used by the Company, or enter into an agreement relating to Tax; (xv)
agree or become obligated to do any of the foregoing.
5.2 Access to Information. From the date of this Agreement
through the Closing Date, PM Holdings shall, and shall cause the Company to, (a)
give TCW/EMCO Holding and the TCW/LAP Fund and their authorized representatives
access during normal business hours to all of the books, records, personnel,
offices, accountants and other facilities and properties relating to the Company
and the Company Subsidiaries; (b) permit TCW/EMCO Holding and the TCW/LAP Fund
to make such copies and inspections thereof during normal business hours as
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TCW/EMCO Holding and the TCW/LAP Fund may reasonably request and (c) cause their
respective personnel to furnish TCW/EMCO Holding and the TCW/LAP Fund with such
financial and operating data and other information with respect to the
businesses of the EMCO Group and assets and properties of the EMCO Group as
TCW/EMCO Holding and the TCW/LAP Fund may from time to time reasonably request;
provided, that, in the case of subclauses (a), (b) and (c), reasonable advance
notice is given to the Company by TCW/EMCO Holding, any actions or requests of
TCW/EMCO Holding shall not interfere with the normal operations of the Business,
and the Company shall not be required to prepare or create any unduly burdensome
financial or other information that it would not otherwise be preparing or
creating in the normal course.
5.3 Consents; Reasonable Efforts.
(a) Each of PM Holdings and TCW/EMCO Holding shall, and PM
Holdings shall cause the EMCO Group to, use all reasonable efforts to make or
cause to be made all filings and obtain all Approvals and consents of third
parties necessary to consummate the transactions contemplated by this Agreement
and the Ancillary Agreements. The Parties will mutually take all the necessary
steps to obtain the approval of the Agreement and/or of the Ancillary Agreements
under the Defense of Competition Law should any Governmental Entity, including
the Comision Nacional de Defensa de la Competencia and/or the Tribunal Nacional
de Defensa de la Competencia, require the approval thereunder after the Closing.
(b) Each of PM Holdings and TCW/EMCO Holding shall, and PM
Holdings shall cause the EMCO Group to, cooperate, and use all reasonable
efforts to take, or cause to be taken, all action, and to do, or cause to be
done, all things necessary, proper or advisable (subject to applicable Laws and
regulations) to consummate the transactions contemplated by this Agreement and
the Ancillary Agreements.
(c) PM Holdings shall not and shall not permit Phoenix, any
of PM Holdings' Subsidiaries or any of their respective officers or directors,
employees, Affiliates, agents or representatives (including, without limitation,
any investment banker, attorney or accountant retained by Phoenix or any of its
Subsidiaries) to (i) initiate or solicit, directly or indirectly, any inquiries
or the making of any proposal with respect to a merger, consolidation,
recapitalization or similar transaction involving the purchase of all or any
significant portion of the assets of, or any equity interest in, the Company or
any of its Subsidiaries (an "Acquisition Proposal"), or
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(ii) engage in any negotiations to, or have any discussions with, any person
relating to an Acquisition Proposal, or otherwise facilitate any effort or
attempt to make or implement an Acquisition Proposal. PM Holdings will cause
each of the foregoing to notify TCW/EMCO Holding immediately if any such
inquiries or proposals are received by, or any such information is requested
from, any of their respective officers, shareholders or other representatives.
5.4 Notification of Certain Matters.
(a) From time to time prior to the Closing, PM Holdings
shall promptly supplement or amend the Disclosure Schedule with respect to any
matter arising after the delivery thereof pursuant hereto that, if existing at,
or occurring on, the date of this Agreement, would have been required to be set
forth or described in the Disclosure Schedule. Any such supplement or amendment
that relates to a representation or warranty in Article III hereof for the
period after the execution of this Agreement until the Closing shall be deemed
to constitute an exception to the representation and warranty for such period,
but only for purposes of Section 8.2(a) hereof (provided that any TCW Damages
otherwise attributable thereto shall be included in determining whether the
threshold in Section 8.2(c)(i) has been met) and only to the extent of the
breach specifically disclosed to TCW/EMCO Holding, if either: (i) TCW/EMCO
Holding shall not have objected in writing to such exception within five
Business Days (but in no event later than the Business Day immediately preceding
the Closing Date) of the receipt of such supplement or amendment or (ii) if
TCW/EMCO Holding shall have so objected but shall nevertheless proceed to
consummate the Closing. Except as provided above, no supplement or amendment of
the Disclosure Schedule made after the execution hereof by PM Holdings pursuant
to this Section 5.4 or otherwise shall be deemed to cure any breach of any
representation of or warranty made pursuant to this Agreement.
(b) PM Holdings shall give notice to TCW/EMCO Holding
promptly after becoming aware of (i) the occurrence or non-occurrence of any
event whose occurrence or non-occurrence would be likely to cause either (A) any
representation or warranty contained in this Agreement to be untrue or
inaccurate in any material respect at any time from the date hereof to the
Closing Date or (B) any condition set forth in Article VI to be unsatisfied in
any material respect at any time from the date hereof to the Closing Date and
(ii) any material failure of PM Holdings, Phoenix or the EMCO Group or any
officer, director, employee or agent thereof, to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied by it
hereunder or under the Ancillary Agreements;
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provided, however, that, except as provided in Section 5.4(a), the delivery of
any notice pursuant to this Section shall not limit or otherwise affect the
remedies available hereunder to TCW/EMCO Holding.
(c) From time to time prior to the Closing, TCW/EMCO Holding
shall promptly supplement or amend the representations and warranties made in
Article IV with respect to any matter arising after the delivery hereof that if
existing at, or occurring on, the date of this Agreement, would have rendered
such representation or warranty inaccurate. Any such supplement or amendment
that relates to a representation or warranty in Article IV for the period after
the execution of this Agreement until the Closing shall be deemed to constitute
an exception to the representation and warranty for such period, but only for
purposes of Section 8.3(a) hereof (provided that any PM Damages otherwise
attributable thereto shall be included in determining whether the threshold in
Section 8.3(c)(i) has been met) and only to the extent of the breach
specifically disclosed to PM Holdings, if either: (i) PM Holdings shall not have
objected in writing to such exception within five Business Days (but in no event
later than the Business Day immediately preceding the Closing Date) of the
receipt of such supplement or amendment or (ii) if PM Holdings shall have so
objected but shall nevertheless proceed to consummate the Closing. Except as
provided above, no supplement or amendment of any such representation or
warranty made after the execution hereof by TCW/EMCO Holding pursuant to this
Section 5.4 or otherwise shall be deemed to cure any breach of any
representation of or warranty made pursuant to this Agreement.
(d) TCW/EMCO Holding shall give notice to PM Holdings
promptly after becoming aware of (i) the occurrence or non-occurrence of any
event whose occurrence or non-occurrence would be likely to cause either (A) any
representation or warranty contained in this Agreement to be untrue or
inaccurate in any material respect at any time from the date hereof to the
Closing Date or (B) any condition set forth in Article VI to be unsatisfied in
any material respect at any time from the date hereof to the Closing Date and
(ii) any material failure of TCW/EMCO Holding or any officer, director, employee
or agent thereof, to comply with or satisfy any covenant, condition or agreement
to be complied with or satisfied by it hereunder; provided, however, that,
except as provided in Section 5.4(c), the delivery of any notice pursuant to
this Section shall not limit or otherwise affect the remedies available
hereunder to PM Holdings.
5.5 Publicity. None of PM Holdings, TCW/EMCO Holding or
their respective Affiliates shall issue or cause the publication of any press
release or
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other announcement with respect to this Agreement or the Ancillary Agreements or
the transactions contemplated hereby or thereby without prior consultation with
the other Party, except as may be required by Law or by any listing agreement
with a national securities exchange or trading market, in which case such Party
shall have the right to review such press release or announcement prior to
publication.
5.6 Contact with Customers and Suppliers. TCW/EMCO Holding
(and all of its agents and Affiliates and any of its or its Affiliates'
employees, directors or officers) may contact and communicate with the
employees, customers, suppliers and licensors of the Company and its
Subsidiaries in connection with the transaction contemplated hereby only with
the prior written consent of PM Holdings, which consent may not be unreasonably
withheld but may be conditioned upon an officer of the Company and/or PM
Holdings being present at any such meeting or conference.
ARTICLE VI
CONDITIONS TO CLOSING
6.1 TCW/EMCO Holding's Conditions Precedent. Notwithstanding
any other provision contained in this Agreement, TCW/EMCO Holding's obligation
to purchase the TCW/EMCO Shares from PM Holdings and the obligations of TCW/EMCO
Holding and the TCW/LAP Fund to take the other actions provided in this
Agreement and the Ancillary Agreements to which it is a party is expressly
conditioned upon, and subject to, the satisfaction of each of the following
conditions prior to or at the Closing Date:
(a) The representations and warranties made and given by PM
Holdings in this Agreement and by PM Holdings, the EMCO Group and Phoenix in the
Ancillary Agreements shall be true and correct in all material respects in the
case of those representations and warranties not qualified by "Material Adverse
Effect", "material" or similar qualification, and true and correct in all
respects in the case of those representations and warranties that are so
qualified, in each case as of the date hereof and as of the Closing Date, as
though made on and as of each such date;
(b) Each of PM Holdings, the EMCO Group and Phoenix shall
have performed all obligations and complied with all covenants and agreements to
be
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performed or complied with by it pursuant to this Agreement and the Ancillary
Agreements on or before the Closing Date;
(c) All Approvals required to be obtained in connection with
the transactions contemplated by this Agreement and the Ancillary Agreements,
including, without limitation, those set forth on Section 3.6 of the Disclosure
Schedule, shall have been duly obtained and completed and be in full force and
effect;
(d) No Law shall have been enacted or promulgated by any
Governmental Entity, and there shall be no order or injunction of a court of
competent jurisdiction, which restrains or prohibits the transactions
contemplated hereby or by the Ancillary Agreements; and no action, suit,
proceeding or investigation shall be pending or threatened before or by any
Governmental Entity seeking to restrain, prohibit or obtain material damages in
respect of this Agreement or the Ancillary Agreements or the consummation of the
transactions contemplated hereby or thereby;
(e) PM Holdings shall have delivered to TCW/EMCO Holding a
duly executed officer's certificate of PM Holdings certifying as to the
satisfaction of the conditions in Sections 6.1(a) and 6.1(b) hereof;
(f) PM Holdings shall have delivered to TCW/EMCO Holding
opinions of United States and Argentine counsel to the Company and PM Holdings,
substantially in the form of Exhibits ▇-▇ and J-2;
(g) The Ancillary Agreements shall have been duly executed
and delivered by PM Holdings, the EMCO Group and Phoenix, as applicable, and
shall be in full force and effect;
(h) The Company shall have adopted the By-laws in the form
attached hereto as Exhibit B; and
(i) There shall not have occurred on or after the date
hereof and be continuing any of the following; (i) the declaration of a banking
moratorium or any suspension of payments in respect of banks in Argentina or the
United States; (ii) any general suspension of trading in, or limitation on
prices for, securities on any national securities exchange or in the
over-the-counter market in Argentina or the United States, any decline in any
recognized index of securities traded in Argentina or the United States by an
amount in excess of 15% as measured from the close of
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business on the date hereof; (iii) the commencement of a war or armed
hostilities or other national or international calamity directly or indirectly
involving Argentina or the United States; (iv) the nationalization or other
expropriation of the Company or any Company Subsidiary, or any of the material
assets of any of them; (v) any statute, regulation, legislation, interpretation,
judgment, order or injunction proposed, enacted, enforced, promulgated, amended,
issued or deemed applicable to the Company, any Company Subsidiary, TCW/EMCO
Holding or the TCW/LAP Fund which materially impairs any such entity's ability
to operate, or (vi) any change in Argentina or United States currency exchange
regulations or a suspension of, or limitation on, the exchange markets for such
currencies.
6.2 PM Holdings' Conditions Precedent. Notwithstanding any
other provision contained in this Agreement, the obligation of PM Holdings to
sell the TCW/EMCO Shares to TCW/EMCO Holding, and the obligations of PM
Holdings, the EMCO Group and Phoenix to take the other actions provided in this
Agreement and the Ancillary Agreements to which they are parties, is expressly
conditioned upon, and subject to, the satisfaction of each of the following
conditions prior to or at the Closing Date:
(a) The representations and warranties made and given by
TCW/EMCO Holding in this Agreement and by TCW/EMCO Holding and the TCW/LAP Fund
in the Ancillary Agreements shall be true and correct in all material respects
in the case of those representations and warranties not qualified by "Material
Adverse Effect" or "material" or similar qualification, and true and correct in
all respects in the case of representations and warranties that are so
qualified, in each case as of the date hereof and as of the Closing Date, as
though made on and as of each such date;
(b) Each of TCW/EMCO Holding and the TCW/LAP Fund shall have
performed all obligations and complied with all covenants and agreements to be
performed or complied with by it pursuant to this Agreement and the Ancillary
Agreements on or before the Closing Date;
(c) All Approvals required to be obtained in connection with
the transactions contemplated by this Agreement and the Ancillary Agreements,
including, without limitation, those set forth on Section 3.6 of the Disclosure
Schedule, shall have been duly obtained and completed and be in full force and
effect;
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(d) No Law shall have been enacted or promulgated by any
Governmental Entity, and there shall be no order or injunction of a court of
competent jurisdiction, which restrains or prohibits the transactions
contemplated hereby and by the Ancillary Agreements; and no action, suit,
proceeding or investigation shall be pending or threatened before or by any
Governmental Entity to restrain, prohibit or obtain material damages in respect
of this Agreement or the Ancillary Agreements or the consummation of the
transactions contemplated hereby or thereby;
(e) TCW/EMCO Holding shall have delivered to PM Holdings a
duly executed officer's certificate of TCW/EMCO Holding certifying as to the
satisfaction of the conditions in Sections 6.2(a) and 6.2(b);
(f) TCW/EMCO Holding shall have delivered to PM Holdings
opinions of United States and Argentine counsel to TCW/EMCO Holding
substantially in the form of Exhibits J-3 and J-4; and
(g) The Ancillary Agreements shall have been duly executed
and delivered by TCW/EMCO Holding and the TCW/LAP Fund, as applicable, and shall
be in full force and effect.
ARTICLE VII
TERMINATION AND ABANDONMENT
7.1 Termination. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned at any time prior to the
Closing Date:
(a) by mutual written consent of PM Holdings and TCW/EMCO
Holding; or
(b) by PM Holdings, on the one hand, or TCW/EMCO Holding, on
the other hand, at any time after November 12, 1999 (the "Termination Date"), if
the Closing shall not have occurred on or prior to such date; or
(c) by TCW/EMCO Holding in the event of any material breach
by PM Holdings of any of its agreements, representations and warranties
contained
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herein; and, if such breach is curable, the failure by PM Holdings to cure such
breach prior to the Termination Date after receipt of notice of TCW/EMCO Holding
requesting that the breach be cured; or
(d) by PM Holdings in the event of any material breach by
TCW/EMCO Holding of any of its agreements, representations and warranties
contained herein; and, if such breach is curable, the failure by TCW/EMCO
Holding to cure such breach prior to the Termination Date after receipt of
notice of PM Holdings requesting that the breach be cured.
7.2 Procedure for and Effect of Termination. In the event of
termination of this Agreement and abandonment of the transactions contemplated
hereby by the parties hereto pursuant to Section 7.1, written notice thereof
shall be given by a party so terminating to the other party and, except as set
forth in Section 7.2(c), this Agreement shall forthwith terminate and shall
become null and void and of no further effect, and the transactions contemplated
hereby shall be abandoned without further action by the Parties. If this
Agreement is terminated pursuant to Section 7.1:
(a) each Party agrees to maintain confidential any nonpublic
data, material and other information pertaining to their respective businesses
obtained from the other pursuant to this Agreement and the transactions
contemplated hereby and shall redeliver all documents, work papers and other
materials of the other parties relating to the transactions contemplated hereby,
whether so obtained before or after the execution hereof, to the Party
furnishing the same;
(b) all filings, applications and other submissions made
pursuant hereto shall, to the extent practicable, be withdrawn from the
Governmental Entity or other Person to which made; and
(c) there shall be no liability or obligation hereunder on
the part of PM Holdings or TCW/EMCO Holding or any of their respective
directors, officers, employees, affiliates, controlling persons, agents or
representatives, except with respect to a breach of one or more of the
provisions of this Agreement, and except that the obligations provided for in
this Section 7.2 and Sections 9.1, 9.5, 9.6 and 9.7 shall survive any such
termination.
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ARTICLE VIII
SURVIVAL AND INDEMNIFICATION
8.1 Survival Periods. All representations and warranties of
the Parties contained in this Agreement shall survive the Closing until ninety
days after the delivery to TCW/EMCO Holding of the unaudited balance sheet,
statement of operations and statement of profits and losses of the Company and
its consolidated Subsidiaries as of and for the six-month period ended December
31, 2000 (or the delivery of such audited consolidated financial statements
(together with the unqualified report of the Company's independent certified
public accountants) as of and for the year ended December 31, 2000 if the
Company shall have changed its fiscal year to a calendar year) (except that the
representations and warranties herein relating to Taxes, matters covered by
Section 3.14 and environmental matters and to title to the TCW/EMCO Shares,
absence of Liens thereon and compliance with Law (to the extent it involves
matters relating to the regulation or regulatory status of the Business, the
Company, the Company Subsidiaries or any of the foregoing's directors, officers,
employees, shareholders or other affiliates (collectively, "Regulatory
Matters")) shall survive until the 45th day after the applicable statute of
limitations (including extensions thereof) has expired (the "Survival Period"))
but, except as provided in Section 8.2 or 8.3, shall not survive any termination
of this Agreement. This Section 8.1 shall not limit any covenant or agreement of
the Parties which contemplates performance after the Closing.
8.2 PM Holdings' Agreement to Indemnify.
(a) Subject to the terms and conditions set forth herein
(including without limitation Section 9.7(e)), from and after the Closing, PM
Holdings shall indemnify and hold harmless TCW/EMCO Holding, the Company and
their respective directors, officers, employees, Affiliates, controlling
Persons, agents and representatives and their successors and assigns
(collectively, the "TCW Indemnitees"), from and against all liability, demands,
claims, actions or causes of action, assessments, losses, damages, costs and
expenses (including, without limitation, attorneys' fees and expenses)
(collectively "TCW Damages") asserted against or incurred by any TCW Indemnitee
as a result of or arising out of (i) subject to the expiration of the Survival
Period in Section 8.1, a breach of or inaccuracy in any representation or
warranty contained in Article III of this Agreement when made or at and as of
the Closing Date as though such representation and warranty were
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made at and as of the date hereof and the Closing Date, and (ii) any breach of
any of the covenants and agreements of PM Holdings contained in this Agreement.
For purposes of this Article VIII, in determining whether there has been any
breach of or inaccuracy in any representation or warranty contained in Article
III of this Agreement, any qualification, limitation or exception in any
representation or warranty as to "Material Adverse Effect" or "material" or
similar qualification shall be of no force and effect.
(b) No claim for the recovery of any TCW Damages under
Section 8.2(a)(i) may be asserted by a TCW Indemnitee after the expiration of
the applicable Survival Period; provided, however, that claims in writing made
by a TCW Indemnitee with reasonable specificity prior to the expiration of the
applicable Survival Period shall not thereafter be barred by the expiration of
the applicable Survival Period.
(c) (i) No reimbursement for TCW Damages asserted under
Section 8.2 (a)(i) shall be required unless and until the cumulative aggregate
amount of such TCW Damages exceeds US$1,000,000 and then only to the extent that
the aggregate amount of TCW Damages, as finally determined, exceeds such amount;
and (ii) in no event will the TCW Indemnitees be entitled to indemnification
under Section 8.2(a)(i) with respect to any particular breach or inaccuracy
unless the amount of such breach or inaccuracy alone, or together with any other
matters arising out of significantly related facts and circumstances, involves
TCW Damages in excess of US$10,000, nor shall the TCW Indemnitees be entitled
to aggregate indemnification under Section 8.2(a)(i) in excess of US$40,000,000;
provided, however, that no such limitations under either clause (i) or (ii)
above shall apply to the reimbursement or indemnification for TCW Damages
arising from any third-party claims described in Section 8.4.
(d) The indemnity provided in this Section 8.2 shall be the
sole and exclusive remedy of TCW/EMCO Holding (and any of its Affiliates)
against PM Holdings (and any of its Affiliates), in respect of any inaccuracy or
breach of any representation, warranty or covenant of PM Holdings in this
Agreement and the sale and purchase of the TCW Shares contemplated hereby (but
not with respect to breaches of any Ancillary Agreement), except in respect of
injunctive and other similar non-monetary relief or remedies and except for
claims based on fraud). Each of PM Holdings and TCW/EMCO Holding hereby
acknowledges that it has relied solely on the representations, warranties and
covenants of TCW/EMCO Holdings or PM Holdings, as applicable, pursuant to this
Agreement and the Ancillary Agree-
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ments and on no other statements, reports or other information furnished by or
on behalf of such Person or its Affiliates.
(e) In the event there is an Event of Default (as such term
is defined in the Notes) under any Note, PM Holdings may deduct the amount due
and unpaid on such Note from any amounts due to TCW/EMCO Holding under this
Section 8.2.
8.3 TCW/EMCO Holding's Agreement to Indemnify. (a) Subject
to the terms and conditions set forth herein (including without limitation
Section 9.7(e)), from and after the Closing, TCW/EMCO Holding shall indemnify
and hold harmless PM Holdings, the Company and their respective directors,
officers, employees, Affiliates, controlling Persons, agents and representatives
and their successors and assigns (collectively, the "PM Indemnitees"), from and
against all liability, demands, claims, actions or causes of action,
assessments, losses, damages, costs and expenses (including, without limitation,
attorneys' fees and expenses) (collectively, "PM Damages") asserted against or
incurred by any PM Indemnitee as a result of or arising out of (i) subject to
the expiration of the Survival Period in Section 8.1, a breach of or inaccuracy
in any representation or warranty contained in Article IV of this Agreement when
made or at and as of the Closing Date as though such representation and warranty
were made at and as of the date hereof and the Closing Date, and (ii) any breach
of any of the covenants and agreements of TCW/EMCO Holding contained in this
Agreement. For purposes of this Article VIII, in determining whether there has
been any breach of or inaccuracy in any representation or warranty contained in
Article IV of this Agreement, any qualification, limitation or exception in any
representation or warranty as to "Material Adverse Effect" or "material" or
similar qualification shall be of no force and effect.
(b) No claim for the recovery of any PM Damages under
Section 8.3(a)(i) may be asserted by a PM Indemnitee after the expiration of the
applicable Survival Period; provided, however, that claims in writing made by a
PM Indemnitee with reasonable specificity prior to the expiration of the
applicable Survival Period shall not thereafter be barred by the expiration of
the applicable Survival Period.
(c) (i) No reimbursement for PM Damages asserted under
Section 8.3(a)(i) shall be required unless and until the cumulative aggregate
amount of such PM Damages exceeds US$1,000,000 and then only to the extent that
the aggregate amount of PM Damages, as finally determined, exceeds such amount,
and (ii) in no event will the PM Indemnitees be entitled to indemnification
under Section 8.3(a)(i)
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with respect to any particular breach or inaccuracy unless the amount of such
breach or inaccuracy, alone, or together with any other matter arising out of
significantly related facts and circumstances, involves PM Damages in excess
of US$10,000, nor shall the PM Indemnities be entitled to aggregate
indemnification under Section 8.3(a)(i) in excess of US$40,000,000; provided,
however, that no such limitations under either clauses (i) or (ii) above shall
apply to the reimbursement or indemnification for PM Damages arising (A) due to
a breach or inaccuracy of a representation or a warranty relating to the
authority to conduct the transactions contemplated hereby or (B) from any
third-party claim described in Section 8.4.
(d) The indemnity provided in this Section 8.3 shall be the
sole and exclusive remedy of PM Holdings (and any of its Affiliates) against
TCW/EMCO Holding (and any of its Affiliates), in respect of any inaccuracy or
breach of any representation, warranty or covenant of TCW/EMCO Holding in this
Agreement and the sale and purchase of the TCW Shares contemplated hereby (but
not with respect to breaches of any Ancillary Agreement), except in respect of
injunctive and other similar non-monetary relief or remedies and except for
claims based on fraud. Each of PM Holdings and TCW/EMCO Holding hereby
acknowledges that it has relied solely on the representations, warranties and
covenants of TCW/EMCO Holdings or PM Holdings, as applicable, pursuant to this
Agreement and the Ancillary Agreements and on no other statements, reports or
other information furnished by or on behalf of such Person or its Affiliates.
8.4 Third Party Indemnification. The obligations of PM
Holdings to indemnify the TCW Indemnitees under Section 8.2 hereof with respect
to TCW Damages, and of TCW/EMCO Holding to indemnify PM Holdings under Section
8.3 hereof with respect to PM Damages, in either case resulting from any
assertion of liability by third parties, whether pursuant to any investigation,
regulatory or governmental proceeding, legal action or other dispute (each, as
the case may be, a "Claim"), will be subject to the following terms and
conditions:
(a) Any party against whom any Claim is asserted (the
"Indemnified Party") will give the other party (the "Indemnifying Party")
written notice of any such Claim promptly after learning of such Claim, and the
Indemnifying Party may at its option undertake the defense thereof by
representatives of its own choosing. Failure of the Indemnified Party to give
prompt notice of a Claim hereunder shall not affect the Indemnifying Party's
obligations under this Section 8.4(a), except to the extent the Indemnifying
Party is materially prejudiced by such failure to give prompt notice. If the
Indemnifying Party, within seven days after notice of any such Claim
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51
or such shorter period as is reasonably required, fails to assume the defense of
such Claim, the Indemnified Party against whom such claim has been made will
(upon no further notice to the Indemnifying Party) have the right to undertake
the defense, compromise or settlement of such Claim on behalf of and for the
account and risk, and at the expense, of the Indemnifying Party, subject to the
right of the Indemnifying Party, to assume the defense of such Claim at any time
prior to settlement, compromise or final determination thereof.
(b) Notwithstanding anything in this Section 8.4 to the
contrary, the Indemnifying Party shall not enter into any settlement or
compromise of any action, suit or proceeding or consent to the entry of any
judgment (i) which does not include as an unconditional term thereof the
delivery by the claimant or plaintiff to the Indemnified Party of a written
release from all liability in respect of such action, suit or proceeding or (ii)
for other than monetary damages to be borne by the Indemnifying Party, without
the prior written consent of the Indemnified Party, which consent shall not be
unreasonably withheld.
(c) TCW/EMCO Holding and PM Holdings shall cooperate fully
in all aspects of any investigation, defense, pre-trial activities, trial,
compromise, settlement or discharge of any claim in respect of which indemnity
is sought pursuant to this Article VIII, including, but not limited to, by
providing the other party with reasonable access to employees and officers
(including as witnesses) and other information.
8.5 Other Indemnification Matters. In the event that
TCW/EMCO Holding or PM Holdings Transfers (as that term is defined in the
Shareholders Agreement) any TCW/EMCO Shares or PM Holdings Shares, as the case
may be, to any Person in compliance with the Shareholders Agreement, the
non-transferring Party agrees that any such Person shall be entitled to the
benefits of the indemnification provisions hereunder as if it and its related
parties were included in the definition of TCW Indemnitees or PM Indemnitees, as
the case may be, hereunder.
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ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 Expenses. Except as otherwise expressly provided in this
Agreement, each party to this Agreement will bear its respective expenses
incurred in connection with the preparation, negotiation and execution of this
Agreement and the Ancillary Agreements, including all fees and expenses of
agents, representatives, counsel and accountants, whether or not the Closing
occurs.
9.2 Amendment and Modification. This Agreement may be
amended, modified or supplemented at any time by the Parties hereto, pursuant to
an instrument in writing, signed by both Parties.
9.3 Entire Agreement Assignment. This Agreement (together
with the Ancillary Agreements, the Disclosure Schedule and the Schedules and
Exhibits hereto and thereto and the Confidentiality Agreement) (a) constitutes
the entire agreement between the Parties with respect to the subject matter
hereof and supersedes other prior agreements and understandings, both written
and oral, between the parties hereto with respect to the subject matter hereof
and (b) shall not be assigned, by operation of Law or otherwise, by either
Party, without the prior written consent of the other Party; provided, however,
that either Party may assign any of its rights and obligations hereunder to any
transferee of its Shares permitted by the Shareholders Agreement without any
such consent.
9.4 Severability. The invalidity or unenforceability of any
term or provision of this Agreement in any situation or jurisdiction shall not
affect the validity or enforceability of the other terms or provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction and the remaining terms and provisions
shall remain in full force and effect.
9.5 Notices. Unless otherwise provided herein, all notices
and other communications hereunder shall be in writing and may be given by any
of the following methods: (a) personal delivery; (b) facsimile transmission; (c)
registered or certified mail, postage prepaid, return receipt requested, or (d)
overnight delivery service. Such notices and communications shall be sent to the
appropriate Party at its address or facsimile number given below or at such
other address or facsimile number for such Party as shall be specified by notice
given hereunder (and shall be
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deemed given upon receipt by such Party or upon actual delivery to the
appropriate address, or, in case of a facsimile transmission, upon transmission
thereof by the sender and issuance by the transmitting machine of a confirmation
slip that the number of pages constituting the notice has been transmitted
without error; in the case of notices sent by facsimile transmission, the sender
shall contemporaneously mail a copy of the notice to the addressee at the
address provided for above; provided, however, that such mailing shall in no way
alter the time at which the facsimile notice is deemed received):
(a) if to PM Holdings to:
PM Holdings, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy, which shall not constitute notice, to:
Debevoise & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
(b) if to TCW/EMCO Holding, to
TCW/EMCO Holding LLC
c/o TCW/Latin America Partners, L.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Messrs. ▇▇▇▇▇ ▇. ▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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with a copy, which shall not constitute notice, to
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
9.6 Dispute Resolution. In the event of any dispute,
controversy or claim arising out of or relating to this Agreement (including any
provision of any Schedule or Exhibit hereto) or the breach, termination or
validity thereof (a "Dispute"), upon the written request (a "Dispute Notice") of
either Party to this Agreement, the matter shall immediately be referred to
senior officers for resolution. The senior officers shall meet immediately and
attempt in good faith to negotiate a resolution of the Dispute. If the parties
are unable to resolve the Dispute within ten days after receipt of a Dispute
Notice, then either party may submit the Dispute to the Specified Courts in
accordance with the procedures set forth in Section 9.7.
9.7 Governing Law; Waiver of Jury Trial.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE CONFLICTS OF
LAWS, RULES AND PRINCIPLES THEREOF.
(b) Each of PM Holdings and TCW/EMCO Holding hereby submits
to the exclusive jurisdiction of the federal and state courts in the Borough of
Manhattan in The City of New York and any appellate court therefrom (the
"Specified Courts") in any suit, action or proceeding arising out of or relating
to this Agreement, the Ancillary Agreements to which they are parties or the
transactions contemplated hereby or thereby (a "Related Proceeding"). Each of PM
Holdings and TCW/EMCO Holding waives any objection to Related Proceedings in any
Specified Court whether on the grounds of venue, residence or domicile or on the
ground that the Related Proceedings have been brought in an inconvenient forum.
PM Holdings irrevocably appoints CT Corporation System, presently located at ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Process Agent"), as the authorized
agent in the
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▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ in The City of New York upon which process may be served
on PM Holdings in any Related Proceeding. PM Holdings represents and warrants
that the Process Agent has agreed to act as agent for service of process, and
PM Holdings agrees to take any and all action, including the filing of any and
all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. If the Process Agent shall
cease to act as PM Holdings' agent for service of process, PM Holdings shall
appoint without delay another such agent and notify the other party of such
appointment. With respect to any such action in any New York State or United
States federal court in the Borough of Manhattan, The City of New York, service
of process upon the Process Agent and written notice of such service to PM
Holdings shall be deemed, in every respect, effective service of process upon
PM Holdings.
(c) TCW/EMCO Holding agrees that, should it no longer
maintain its executive offices in The City of New York it shall irrevocably
appoint CT Corporation System, at the address set forth above, as the
authorized agent in the Borough of Manhattan in The City of New York upon which
process may be served on TCW/EMCO Holding in any Related Proceeding.
(d) To the extent permitted by Law, PM Holdings and
TCW/EMCO Holding each waives trial by jury in any action instituted hereunder.
(e) PM Holdings and TCW/EMCO Holding each expressly waives
any right to recover, pursuant to Article 8 or otherwise, punitive,
incidental, indirect or consequential damages in any action instituted
hereunder; provided, however, that the foregoing shall not prevent either party
from recovering lost profits damages to the extent constituting direct damages.
9.8 Descriptive Headings. The descriptive headings herein
are inserted for convenience of reference only and shall in no way be construed
to define, limit, describe, explain, modify, amplify or add to the
interpretation, construction or meaning of any provision of, or scope or intent
of, this Agreement nor in any way affect this Agreement.
9.9 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
collectively shall constitute one and the same instrument.
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9.10 No Third Party Beneficiaries. This Agreement is for
the benefit of PM Holdings and its successors and permitted assigns, and, in
the case of Article VIII, the PM Indemnitees, with respect to the obligations
of TCW/EMCO Holding under this Agreement, and for the benefit of TCW/EMCO
Holding and its successors and permitted assigns, and, in the case of Article
VIII hereof, the TCW Indemnitees, with respect to the obligations of PM
Holdings under this Agreement, and this Agreement shall not be deemed to confer
upon or give to any other third party any remedy, claim of liability or
reimbursement, cause of action or other right.
9.11 No Waivers. Except as otherwise expressly provided
herein, no failure to exercise, delay in exercising, or single or partial
exercise of any right, power or remedy by any Party, and no course of dealing
between the Parties, shall constitute a waiver of any such right, power or
remedy. No waiver by a Party of any default, misrepresentation or breach of
warranty or covenant hereunder, whether intentional or not, shall be deemed to
extend to any prior or subsequent default, misrepresentation or breach of
warranty or covenant hereunder or affect in any way any rights arising by
virtue of any prior or subsequent such occurrence. No waiver shall be valid
unless in writing and signed by the Party against whom such waiver is sought to
be enforced.
9.12 Certain Limitations. Except as provided in the final
sentence of this Section 9.12, it is the explicit intent and understanding of
each of the Parties that neither Party nor any of its Affiliates,
representatives or agents is making any representation or warranty whatsoever,
oral or written, express or implied, other than as provided in or pursuant to
this Agreement or any of the Ancillary Agreements and neither Party is relying
on any statement, representation or warranty, oral or written, express or
implied, made by the other Party or such other Party's Affiliates,
representatives or agents except as set forth in or pursuant to this Agreement
or the Ancillary Agreements. The Parties acknowledge that the foregoing shall
not limit claims based on fraud.
9.13 Further Action. Each Party shall execute and deliver
such certificates and other documents and take such other actions as may
reasonably be requested by the other Party in order to consummate or implement
the transactions contemplated hereby.
9.14 Interpretation. Any references in this Agreement to
the "best knowledge" or "knowledge" of the Company or the EMCO Group shall mean
the knowledge of any member of senior management of the Company, any of the EMCO
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Group, any director of the Company or of any of the EMCO Group and any Vice
President or more senior officer or other employee having direct oversight
responsibilities for the Company and the EMCO Group of PM Holdings, of a type
that such person would obtain in the reasonable conduct of his or her duties
and responsibilities. Any reference in this Agreement to the "best knowledge"
or "knowledge" of TCW/EMCO Holding or the TCW/LAP Fund shall mean the knowledge
of any member of senior management of such Person, of a type that such person
would obtain in the reasonable conduct of his or her duties and
responsibilities. The disclosure of any matter in the Disclosure Schedules
shall not be deemed to constitute an admission by PM Holdings, or to otherwise
imply, that any such matter is material for the purposes of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Stock
Purchase Agreement to be duly executed as of the date first above written.
PM HOLDINGS, INC.
By: /s/ ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇
Title: Authorized Person
TCW/EMCO HOLDING LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Person
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Authorized Person
54
